THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


GIFT  OF 
JANE  K.  SATHER 


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•»       -V 


*    \ 


A 

PRACTICAL  TREATISE 

ON    THE 

LAW    OF    SLAVERY. 

BEING    A 

COMPILATION 

OF    ALL    THE 

DECISIONS  MADE  ON  THAT  SUBJECT, 

IN    THE 

SEVERAL  COURTS  OF  THE  UNITED  STATES, 

AND 

STATE   COURTS. 


WITH  COPIOUS    NOTES   AND   REFERENCES 

TO    THE 

STATUTES  AND  OTHER  AUTHORITIES, 

SYSTEMATICALLY    ARRANGED. 


BY  JACOB  D.  WHEELER  ESQ. 

COUNSELLOR   AT    LAW. 


NEW  YORK: 
ALLAN    POLLOCK,    J  R  , 

NEW    ORLEANS, 
BENJAMIN    LEVY, 

1837. 


ENTERED  according  to  the  Act  of  Congress,  in  the  year  1837, 

By  ALLAN  POLLOCK,  Jr. 
in  the  Clerk's  Office  of  the  Southern  District  of  New- York. 


M 


NKW-YORK: 

CRAIG  HEAD  &,  ALLEN,  PRINTERS, 
112  Fulton  Street. 


RECOMMENDATIONS. 

From  the  Hon.  Judge  Hitchcock  of  Alabama. 

New  York,  13th  March,  1837. 
ALLAN  POLLOCK,  JR.  ESQ. 

gIR  : — I  have  given  a  cursory  perusal  (all  that  my  time  would  allow,)  to  the 
work,  entitled  "  A  Practical  Treatise  on  the  Law  of  Slavery,"  upon  which  you 
have  requested  my  opinion. 

As  an  abstract  of  the  decisions  to  be  found  in  the  American  Reports,  upon  that 
subject,  arranged  under  convenient  heads,  I  have  no  doubt  it  will  be  a  valuable 
work  for  the  use  of  the  members,  particularly  of  the  Southern  Bar  of  the  United 
States.  Respectfully,  your  obdt.  servt.  H.  HITCHCOCK. 

Prom  the  New  York  Mercantile  Advertiser. 

Slavery. — The  proof  sheets  of  a  new  work  on  this  subject,  which  will  be  pub 
lished  next  week  by  Mr.  Pollock,  92  Fulton  street,  have  been  submitted  to  us.  It 
is  a  compilation  of  all  the  decisions  made  on  that  subject  in  the  several  Courts  of 
the  United  States,  and  State  Courts,  with  copious  notes  and  references  to  the 
statutes  and  other  authorities,  systematically  arranged, — 1  vol.  500  pages  8vo. — 
From  a  recommendation  of  the  Hon.  Judge  Hitchcock,  of  Alabama,  we  have  no 
doubt  of  its  accuracy  and  usefulness,  especially  to  the  southern  bar  ;  and  at  this 
particular  time,  a  work  of  considerable  interest  at  the  north,  ft  is  rarely  we  take 
up  a  book  that  is  its  equal  in  point  of  printing  and  paper,  and  it  reflects  great  cre 
dit  on  Messrs.  Craighead  and  Allen,  who  are  the  printers.  It  will  stand  a  compa 
rison  with  the  best  London  publications,  and  we  should  be  glad  to  see  all  other 
publishers  pursue  the  same  course  in  getting  up  their  works  that  Mr.  Pollock  has 
.done. 

From  the  New  York  Star. 

Work  on  Slavery. — A  most  important  work  is  nearly  ready  for  publication, 
and  will  be  issued  next  week  by  Mr.  Pollock,  92  Fulton  street.  It  is  a  compila» 
tion  of  all  the  decisions  made  on  the  subject  of  slavery  by  the  several  Courts  of 
the  United  States  and  State  Courts,  with  copious  notes,  indexes,  &c.  &c,  by  J.  D9 
Wheeler,  Esq.  and  very  elegantly  printed  by  Craighead  &  Allen.  At  this  crisis 
we  should  say  such  a  work  is  of  great  interest  and  value,  and  should  have  a  great 
circulation  in  the  Southern  States,  as  well  as  those  States  in  which  the  question  is 
agitating. 


ALLAN  POLLOCK,  JR. 

LAW  PUBLISHER,  92  FULTON  STREET,  NEW  YORK. 

Can  furnish  the  following  work,  by  the  single  copy,  or  icholesalc — viz  : 

A  PRACTICAL  ABRIDGEMENT  of  AMERICAN  COMMON  LAW 
CASES,  argued  and  determined  in  the  Courts  of  the  several  stales,  and  the  United 
States  Courts,  from  the  earliest  period  to  the  present  time  ;  alphabetically  ar 
ranged  ;  with  Notes  and  References  to  the  Statutes  of  each  State,  and  analagous 
Adjudications — Comprising  under  the  several  titles,  a  Practical  Treatise  on  the 
different  branches  of  the  Common  Law. —  By  J.  D.  WHEELER,  Esq.  Counsel 
lor  at  Law.  8  vols.  royal  octavo — price  $6  per  vol.  in  calf  extra. 

Among  the  letters  received  commendatory  of  this  Abridgement,  are  the  follow 
ing  from  Chancellor  Kent  and  Chief  Justice  Marshall. 

SIR  : — I  have  curiously  looked  over  the  first  volume  of  Wheeler's  Practical 
Abridgement  of  Common  Law  Cases1  which  you  were  so  obliging  as  to  send  me. 
As  far  as  I  have  had  time  to  examine  the  work,  I  have  found  it  ably  and  accurately 
executed.  The  rapid  multiplication  of  American  Reports,  suggests  the  necessity 
and  value  of  such  an  undertaking,  and  when  it  shall  be  completed,  in  the  manner 
and  style  it  has  commenced,  it  will,  and  ought  to  become,  an  indispensable  part  of 
a  Lawyer's  Library.  I  wish  the  Editor  and  publishers  of  the  Abridgement,  the 
utmost  patronage  and  success.  Your's  respectfully,  JAMES  KENT. 

From  Chief  Justice  Marshall,  dated  Richmond.  April  16,  1834. 
SIR  : — I  received  your  letter  of  the  21st  March,  accompanying  the  first  volume 
of  Wheeler's  Practical  Abridgement  of  American  Common  Law  Cases,  which  I 
have  read  rapidly.  The  plan  is  well  adapted  to  the  object  of  the  writer,  which  is 
certainly  a  valuable  one,  to  furnish  the  profession  with  some  information  respecting 
the  decisions  and  peculiar  statutory  provisions  of  the  different  States  which  com 
pose  our  great  Republic.  Reports  have  multiplied  so  enormously,  that  they  can 
be  collected  only  in  public  libraries,  or  in  those  of  the  wealthy  and  curious  : 
this  interesting  communication,  therefore,  can  be  communicated  only  by  means  of 
Abridgements,  or  Treatises,  such  as  Story's  Conflict  of  Laws.  The  plan  on  which 
Mr.  Wheeler  has  executed  his  abridgement,  appears  to  me  judicious;  he  has  pre 
sented  with  the  necessary  brevity,  the  very  point  decided  in  the  words  of  the 
Court.  To  speak  positively  on  the  accuracy  of  the  selections,  would  require  an  in 
timate  knowledge  with  the  Reports  themselves,  to  which  I  have  no  pretensions  ; 
but  so  far  as  I  am  acquainted  with  them,  I  am  satisfied  in  his  fidelity. 

Very  respectfully,  JOHN  MARSHALL. 

A  PRACTICAL  and  ELEMENTARY  ABRIDGEMENT  of  the  cases 
argued  and  determined  in  the  Courts  of  King's  Bench,  Common  Pleas,  Exchequer, 
and  at  Nisi  Prius,  from  the  restoration  in  1660,  to  Michaelmas  Term,  IV  Geo.  4, 
with  important  manuscript  cases,  alphabetically  and  chronologically  arranged 
and  translated,  with  copious  notes  and  references  to  the  year  books,  analagous  ad 
judications,  text  writers  and  statutes,  specifying  what  decisions  have  been  affirmed, 
recognised,  qualified  or  overruled,  comprising  under  several  titles,  a  Practical 
Treatise  on  the  different  branches  of  the  Common  Law,  by  CHARLES 
PETERSDORF,  Esq.  of  the  Middle  Temple.  15  vols.  royal  otavo. 

A  supplement  to  the  above  work — being  an  abridgment  of  the  cases  decided  in 
the  same  Courts  from  4th  Geo.  IV  to  the  present  time,  by  ELISHA  HAMMOND, 
Esq.  in  2  vols.  royal  octavo. 

Wheaton's  Reports  of  the  Supreme  Court  of  the  United  States,  in  12  vols. 
(nearly  out  of  print.) 

Law  Books  of  all  kinds  furnished  at  the  lowest  prices  for  cash. 


CONTENTS. 


I.     DEFINITION  AND  NATURE  OF  SLAVERY,  1 

II.     ORIGIN  AND  HISTORY  OF  SLAVERY,  8 

III.  WHO  MAY  BE  HELD  IN  SLAVERY,  11 

(A.)  Of  the  African  or  Negro,  11 

(B.)  Of  Indians.  12 

(C.)  Of  White  Persons,  21 

IV.  OF  THE  INCREASE  OF  SLAVES,  23 

(A.)  To  whom  the  Increase  belongs,  23 

(B.)  Of  the  Grant  or  Devise  of  the  Increase,  27 

V.  OF  SLAVES  CONSIDERED  AS  PROPERTY,  36 

(A.)  When  considered  as  Real  Property,  .  36 

(B.)  When  considered  Personal  Property.  38 

VI.  OF  TITLE  TO  SLAVES,  41 

(A.)  By  Deed,  41 

(B.)  By  Devise  57 

(C.)  By  Parol  Contracts,  59 
(D.)  By  Gift  to  Children,  in  consideration  of 

Marriage,  71 

(E.)  By  the  Statute  of  Limitations,  74 
(F.)  By  Possession  within  the  Statute  of  Frauds, 

and  Fraudulent  Conveyances,  87 

(G.)  By  Prescription.  95 

VII.     OF   WARRANTY,  107 

(A.)  Of  the  Warranty  of  Soundness,  Health,  <fcc.  107 

(B.)  Of  the  Warranty  of  Moral  Qualities,  133 

(C.)  Of  the  Warranty  of  Capacity.  147 

(D.)  Of  the  Warranty  of  Title,  ]48 

VIII.     HIRING  OF  SLAVES,  152 

IX.     OF  MORTGAGE  OF  SLAVES,  164 

X.     OF  DOWER  OF  SLAVES,  181 

XL     OF  THE  DIVISION  OF  SLAVES,  183 

XII.    OF  THE  REMAINDER  IN  SLAVES,  184 


IV  CONTENTS. 

XIII.  OF  THE  INCAPACITY  OF  SLAVES,  190 

(A.)  To  make  a  Contract,  190 

(B.J  To  take  by  Devise,  Descent,  or  Purchase,  191 

(C.)  To  be  a  Witness.  193 

(D.)  To  be  Party  in  a  Suit,  197 

(E.)  To  contract  Matrimony,  199 

XIV.  MASTERS1     AND     OTHERS'     LIABILITIES 

FOR  MALTREATING  THEIR  SLAVES,  200 

XV.  OF    THE    TRIAL    AND    PUNISHMENT    OF 

SLAVES,  204 

XVI.  OF    THE    LIABILITIES  OF  THE    MASTER 

FOR  THE  ACTS  OF  HIS  SLAVE,  225 

(A.)  For  Contracts  made  by  the  Slave,  225 
(B.)  For  his  Negligence,  whereby  others  are  Injured,  230 

(C.)  for  Torts  and  crimes  committed  by  the  Slave.  231 

XVII.  OF  THE  LIABILITY  OF  OTHERS   TO  THE 

MASTER  FOR  ABUSING  HIS  SLAVE.  239 

(A.)  For  Assaulting,  Beating,  or  Harboring  him,  239 

(B.)  For  Maiming  or  Killing  him,  249 
(C.)  For  Property  given  to,  or  Contracts 

made  by  the  slave,  263 

XVIII.  OF  RUNAWAY  OR  FUGITIVE  SLAVES,  266 

XIX.  OF  THE  EMANCIPATION  OF  SLAVES.  279 

(A.)  By  Deed,  279 

(B .)  By  Will,  311 

(C.)  By  Contract,  331 

(D.)  By  the  effect  of  Foreign  Laws,  335 

(E.)  By  the  effect  of  Domestic  Laws,  356 

(F.)  By  Implication.  385 

XX.  OF  SUITS  FOR  FREEDOM.  388 

(A.)  Of  the  Action,  388 

(B.)  Of  the  Evidence,  392 

(C.)  Of  the  Damages,  409 

(D.)  Of  the  Judgment.  411 

XXI.  OE  THE  ACTION  TO  RECOVER  SLAVES.  415 

XXII.  OF   STEALING  AND   KIDNAPPING 

SLAVES.  434 

XXIII.  PENALTIES  FOR  TRADING  WITH,  <fcc.  438 

XXIV.  HARBORING  SLAVES.  442 


TABLE  OF  CASES 

INCLUDED  OR  REFERRED  TO  IN  THEIR  NATURAL  ORDER. 


The  reference  to  the  book  from  which  the  case  is  taken  is  to  the  commencement  of 
the  case. 

A. 

Adelle  v.  Beauregard,  1  Martin's  La.  Rep.  183,  7  350 

Ails  v.  Bowman,  2  Louisiana  Rep.  251,  136 

Allain  v.  Young,  9  Martin's  La.  Rep.  221,  200 

Alexander  v.  Deneale,  2  Munf.  Va.  Rep.  341,     -  48  87 

Allexander  v.  Stokely,   7  Serg  <fc  Rawle's  Pa.  Rep.  299,  411 

Ambler  and  wife  v.  Norton,  4  Hen.  &  Munf.  Va.  Rep.  23,  181 

Amedis,  the  case  of,  1  Acton's  Rep.  326,  364 

Amy  v.  Smith,  1  LittelPs  Ky.  Rep.  326,  34 

Anderson  v.  Jackson,  16  Johnson's  N.  Y.  Rep.  282,  184 

Andrews  v.  Hartsfield  et  al,  3  Yerger's  Tenn.  Rep.  39,  106 

v.  Kneeland,  6  Cowen's  N.  Y.  Rep.  354,  124 

Andry  et  al  v.  Foy,  6  Martin's  La.  Rep.  689,       -  144 

7                 "               33,  143 

Antelope,  case  of  the,  10  Wheaton's  U.  S.  Rep.  66,  363 

Arthur  v.  Well's,  2  Const.  Rep.  S.  C.  314,  202 

Astor  v.  Wells  et  al,  4  Wheaton's  U.  S.  Rep.  466,  92 

Atkinson  v.  Clarke,  3  Dev.  N.  C.  Rep.  17),  42  67 

v.  Maling  et  al,  2  Term  Rep.  462,      -  178 

Auld  v.  Norwood,  5  Cranch  U.  S.  Rep.  361,  77 

Austin's  ex'r  v.  Jones,  Gilmer's  Va.  Rep.  341,     -  418 

Ayres  v.  Moore,  2  Stewart's  Ala.  Rep.  336,  91  93 

"     v.  Parks,  3  Hawk's  N.  C.  Rep.  59,  123 

B. 

Babineau  v.  Cormier,  12  Martin's  La.  Rep.  456.  59 

Bahb  v.  Clemson,  10  Serg  &  Rawle's  Pa.  Rep.  419,  60  87 

Bacon  v.  Brown,  3  Bibb's  Ky.  Rep.  35,  120 

Bacot  v.  Parnell,  2  Bailey's  S.  C.  Rep.  424,  159 

Baker  v.  Beasly,  4  Yerger's  Tenn.  Rep.  570,  417 

Baldwin  v.  West,  Hardin's  Ky.  Rep.  50,  132 

Ballingerv.  Worley,  1  Bibb's  Ky.  Rep.  198,  173 
Banks  v.  Marksberry,  3  Littell's  Ky.  Rep.  275,                         28  33  60  184  185 

Baptiste  et  al  v.  De  Volunbrun,  5  Har.  John's  Md.  Rep.  86,  356 

Barfield  v.  Hewlett,  4  Louisiana  Rep.  118,  68 

Barnard  v.  Yates,  1  Nott  &  M'Cord's  S.  C.  Rep.  142,  107 

Barnes  v.  Mawson,  1  Maule  <fc  Selwin's  Rep.  77,  400 

Barnett  v.  Sam,  1  Gilmer's  Va.  Rep.  233,  379 

Barnitz  lessee  v.  Casey,  7  Cranch's  U.  S.  Rep.  476,  184 


vi  TABLE  OF  CASES 

Barrington's  v.  Logan's  adm'rs,  2  Dana's  Ky.  Rep.  432,  34 

Barron  v.  Paxton,  5  Johnson's  N.  Y.  Rep.  258,                    -  -                       93 

Barron  v.  Fender,  3  Murphy's  N.  C.  Rep.  483,                   -  -                      62 

Bartlett  v.  Williams,  1  Pick's  Mass.  Rep.  288,                    -  -                      88 

Bass  v.  Bass,  4  Hen.  <fc  Munf.  Va.  Report  478,                   -  -                    415 

Bateman  v.  Bateman,  1  N.  C.  Law  Repository  85.             -  45 

Bazzi  v.  Roie  et  al,  8  Martin's  La.  Rep.  149,                      -  -                    307 

Beale's  heirs  v.  Do  Gruy,  2  Louisiana  Rep.  468,                -  -                    128 

Beall  v.  Joseph,  Hardin's  Ky.  Rep.  51,                                 -  331 

Beasley  v.  Owen,  3  Hen.  and  Munf.  Va.  Rep.  449,             -  94 

Beattie  v.  Robin,  2  Vermont  Rep.  181,                                .  L                      87 

Beaty  v.  Judy  et  al,  1  Dana's  Ky.  Rep.  101,                       -  -                  2  40 

Beebee  v.  Robert,  1  Wendell's  N.  Y.  Rep.  413,  -                     124 

Bell  and  wife  v.  Hogan,  1  Stewart's  Ala.  Rep.  536,           -  -                    186 

Bell  v.  Rowland  adm'rs,  Hardin's  Ky.  Rep.  301,                  -  85 

Berard  v.  Berard  et  al,  9  Louisiana  Rep.  156,                      -  -                    197 

Berry's  adm'rs  v.  Pullam,  1  Hoy  N.  C.  Rep.  16,                 -  82 

Betty  v.  Moore,  1  Dana's  Ky.  Rep.  235,  .                    187 

Biggers  adrn'r  v.  Alderson,  1  Hen.  and  Munf.  Va.  Rep.  54,  -           419  429 

Bissell  v.  Hopkins,  3  Cowen's  N.  Y.  Rep.  166,                    -  61  88  91  92  93 

Blanton  v.  Caulson,  3  Haywood's  N.  C.  Rep.  155,             -  -                    "85 

Bliss  et  al  v.  Thompson,  4  Massachusetts  Rep.  488,           -  91 

Boardman  v.  Keeler  et  al,  1  Aiken's  Vt.  Rep.  158,             -  87 

Boatright  v.  Meggs,  4  Munf.  Va.  Rep.  145,  -                61  79 

Bocod  v.  Jacobs,  2  Louisiana  Rep.  408,                                 -  .                      136 

Bohn  v.  Headly,  7  Mar.  and  Johns'.  Md.  Rep.  257,           -  25 

Boorman  $  Johnson  v.  Jenkins,  12  Wendall's  N.  Y.  Rep.  566,     -  124 

Booth  et  al  v.  sch'r  L'Esperanza,  Bee  S.  C.  Rep.  92,          -  -                     262 

Bore  v.  Bush  et  al,  18  Martin's  La.  Rep.  1,                        -  222 

Borrekins  v.  Bevan  et  al,  3  Rawle's  Pa.  Rep.  32,              -  -            107  ]20 

Boyd  et  al  v.  Stainbacket  al,  5  Munf.  Va.  Rep.  305,         -  94 

Bradley  v.  Mosby,  3  Call's  Va.  Rep.  50,                              -  -                    189 
Brandon  et  al  v.  Planter's  &c.  Bank  of  Huntsville,!  Stewart's  Ala.Rep  320,  6  58 

Braxton  v.  Gaines  et  al,4  Hen.  and  Munf.  Va.  Rep.  151,  -                      50 

Brent  v.  Chapman,  5  Cranch's  U.  S.  Rep.  358,                   -  -         77  79  86 

Brewer  v.  Hastie,  3  Call's  Va.  Rep.  22,                                .  .                    161 

Broh  v.  Jenkins,  9  Martin's  La.  Rep.  526,                          -  95 

Brooks  v.  Powers,  15  Massachusetts  Rep.  244,                   -  -         61  88  93 

Brown  <fc  Boisseau  v.  May,  1  Munf.  Va.  Rep.  288,             -  -                    248 

Brownston  v.  Cropper,!  Littell's  Ky.  Rep.  173                   -  -                     ug 

Burnley  v.  Lambert,  1  Wash.  Va.  Rep.  308,                        -  424  426  434 

Burrough's  adm'r  v.  negro  Anna,  4  Har.  and  Johns.  Md.  Rep.  262,  319 

Burrows  v.  Stoddard,  3  Connecticut  Rep.  160,  .                       91 

Butler  v.  Boardman,  1  Har.  and  M'Henry's  Md.  Rep.  371,  .           3  12  21 

Butler  v.  Crai?,          2                                     "                  214,  3  ]2  21 

etal  v.  Delaplaine,  7  Serg.  and  Rawle's  Pa.  Rep.  378,  -           331  375 

*'     v.  Hopper,  1  Washington's  C.  C.  Rep.  499,               -  -                     370 

Butt  v.  Caldwell,  4  Bibb's  Ky.  Rep.  459,                            ,  „                      68 

"     v.  Rachel  et  al,  4  Munf.  Va.  Rep  209,                        -  .                      is 

Butterfield  v.  Burroughs,  1  Salkeld's  Rep.  211,                    -  -            107  147 

Bynum  et  al,  ex'rs  v.  Bostwick  et  al,  4  Dess.  S.  C.  Rep.  266,  -                6  191 

Byrd  v.  Boyd.  5  M'Cord's  S.  C.  Rep.  246,                         -  .                   159 

v.  Ward,  4         ««                  «     228,                         ,-•;  .                     73 


TABLE  OF  CASES.  vii 

C. 

Caines  and  wife  v.  Marley,  2  Yerger's  Term.  Rep.  582,  42 

Caldwell  v.  Fenwick,  2  Dana's  Ky.  Rep.  332,  415  418 

"         v.  Sacra,  6  Littell's  Ky.  Rep.  118,  235 

Callen  v.  Thompson,  3  Yerger's  Tenn.  Rep.  475,  88  92 

Carpentier  v.  Coleman,  2  Bay's  S.  C.  Rep.  436,  389 

Carrol  et  al  v.  Conant,  2  J.  J.  Mar.  Ky.  Rep.  201,  37 

"     v.  Early,  4  Bibb's  Ky.  Rep.  270,  418 

Carters  ex'rs  v.  Rutland,  1  Hay.  N.  C.  Rep.  97,  62 

"         "     v.  Carter  et  al,  5  Munf.  Va.  Rep.  108,  77 

Catin  v.  D'Orgenoy's  heirs,  8  Martins  La.  Rep.  218,         -  32  306 

Cato  v.  Howard,  2  Har.  and  Johns.  Md.  Rep.  323,  332 

Cawthorn  v.  Deas,  2  Porter's  Ala.  Rep.  276,  236 

Chapman  v.  Armistead,  4  Munf.  Va.  Rep.  382,  80 

v.  Turner,  1  Call's  Va.  Rep.  280,  165  169 

Chappie,  case  of  Dolly.  1  Virginia  Cases,  184,  254 

Chastain  v.  Bowman  (it  al,  1  Hill's  S.  C.  270,  228 

Chasteen  v.  Ford,  5  Littell's  Ky.  Rep.  268,  312 

Chew  v.  Gary,  6  Har.  and  Johns.  Md.  Rep.  526,  32  313  325 

Chinn  and  wife  v.  Respass,  1  Monroe's  Ky.  Rep.  25,  2  39  40  417 

Chism  v.  Woods,  Hardin's  Ky.  Rep.  531,  148 

Choat  v.  Wright,  2  Devereux  N.  C.  Rep.  249,  64  432 

Chretien  v.  Theard,  1  Martin's  La.  Rep.  11,                        -  110 

Same  case,         14  "  582,  -  102  135  145 

Chumar  v.  Wood,  1  Halstead's  N.  J.  Rep.  285,  87  91 

Claggett  v.  Speake,  4  Har.  and  M'Henry's  Md.  Rep.  162,  162 

Claiborn's  ex'r.  v.  Hill,  1  Wash.  Va.  Rep.  177,  173 

Clark  v.  Henry,  2  Cowen's  N.  Y.  Rep.  324,  175 

"     ads.  M'Donald,  4  M'Ccrd's  S.  C.  Rep.  223,  1 

Clayton  v,  Anthony,  6  Randolph's  Va.  Rep.  285,  87 

Clementson  v.  Williams,  8  Cranch's  U.  S.  Rep.  72,  84 

Clow  et  al  v.  \Voods,  5  Serg.  and  Rawle's  Pa.  Rep.  275,  60  93 

Coleman  v.  Dick  <fc  Pat,  1  Wash.  Va.  Rep.  233,  404 

Colton  v.  Powell,  2  N.  Car.  Law  Repository  431,  62 

Commegys  et  al  v.  Vasse  1  Peters's  U.  S.  Rep.  201,  230 

Commonwealth  v.  Thomas  Aves,  Massachusetts  Mis'lny,                 -  357 

"              v.  Breed.  4  Pickering's  Mass.  Rep.  460,                  -  91 

"              v.  Carver,  5  Randolph's  Va.  Rep.  660,                    -  254 

"              v.  Cook,  1  Watt's  Pa.  Rep.  155,  383 

11             v.  Fields,  4  Leigh's  Va.  Rep.  648,  224 

"             v.  Greathouse,  7  J.  J.  Marshall's  Ky.  Rep.  590,  384 

»'             v.  Griffen,         7              "                              588,  384 

"             v.  Griffith,  2  Pickering's  Mass.  Rep.  11,  376 

v.  Holloway,  2  Serg.  and  Rawle's  Pa.  Rep.  305,  373  383 

"                                   3                 '«                               4,  267 

v.  Oldham,  1  Dana's  Ky.  Rep.  466,  195 

v.  Peas,  4  Leigh's  Va.  Rep.  692,  437 

u             v.  Robinson,  1  Watt's  Pa.  Rep.  158,  383 

v.  Watts,  4  Leigh's  Va.  Rep.  672,  224 

Conclude  v.  Williamson,  1  J.  J.  Marshall's  Ky.  Rep.  16,  41 

Conklin  v.  Havens,  12  Johnson's  N.  Y.  Rep.  314,  26 

Conrad  v.  Atlantic  Ins.  Co.,  1  Peter's  U.  S.  Rep.  386,  88  92 

Cook  v.  Gourdin,  1  Nott  and  M'Cord's  S.  C.  Rep.  19,  2 

"  v.  Wilson's  adm'rs,  6  LittelPs  Ky.  Rep.  437,  79  SO 


Yiii  TABLE  OF  CASES. 

Cooke  v.  Cooke,  3  Littell's  Ky.  Rep.  238,  328 

"       v.  Wise,  3  Hen.  and  Munf.  Va.  Rep.  463.  -                     319 

Confute  v.  Dale,  1  Har.  and  Johns.  Md.  Rep.  4,  234 

Cornwall  v.  Truss,  2  Munf.  Va.  Rep.  194,  417 

Couts's  trustee  and  ex'r.  v.  Craig,  2  Hen.  and  Munf.  Va.  Rep.  622,  29 
Cowancl  et  al.  v.  Reynolds,  3  Louisiana  Rep.  378, 

Cox  v.  ex'rs  of  Robinson,  1  Bibb's  Ky.  Rep.  604,  434 

Craig  v.  Estis,  1  Cook's  Tenn.  Rep.  381,  24 

"     v.  Leiper  et  al.  2  Yerger's  Tenn.  Rep.  193,  230 

"     v.  Payne,  4  Bibb's  Ky.  Rep.  337,  80 

Cramer  v.  Bradshaw,  10  Johnson's  N.  Y.  Rep.  484,  120 

Crawford  v.  Cheney,  15  Martin's  La.  Rep.  142,  249 

Cromwell  v.  Clay,  1  Dana's  Ky.  Rep.  578,  151 

Crozior  v.  Gano  and  wife,  1  Bibb's  Ky.  Rep.  257,  434 

Cuffy  v.  Castillon,5  Martin's  La.  Rep.  494, 

Cunningham's  h's  v.  Cunningham's  ex'rs,  Cam.  &  Nor.  N.  C.  Rep.  353,    57  191 

Cullar  v.  Spillar,  2  Hay  wood's  N.  C.  Rep.  61  r  45 

D. 

Dabney  et  al.  ex'rs  &c.  of  Sadler  v.  Green,  4  Hen.  &  Munf.  Va.  Rep.  100,   165  8 

Dade  v.  Alexander,  1  Wash.  Va.  Rep.  30,  2  58 

Dark  v.  Marsh,  2  N.  C.  Law  Repository  249,  443 

David  v.  Porter,  4  Har.  &  M'Hen.  Md.  Rep.  418,  418 

Davis  v.  Curry.  2  Bibb's  Ky.  Rep.  238,  5  9  406 

"         v.  Mitchell,  5  Yerger's  Tenn'.  Rep.  281,  41  83 

v.  Sandford,  6  Littell's  Ky.  Rep.  206,  121 

Dawes  R.  <fc  A.  v.  Cope,  4  BinneyVPa.  Rep.  258,  87 

Deanes  v.  Scriba  et  al.  2  Call's  Va.  Rep.  350,  161 

Defreese  v.  Trumper,  1  Johnson's  N.  Y.  Rep.  274,  148 

Delery  v.  Mornett,  11  Martin's  La.  Rep.  4,  438 

Delphine  v.  Deveze,  14         "                 650,  101 

Dempsey  v.  Lawrence,  Gilmer's  Va.  Rep.  333,  237  391 

Desdunes  v  Miller,  14  Martin's  La.  Rep.     53,  126 

Didlake  v.  Hooper,  Gilmer's  Va.  Rep.  194r  189 

Dillard  ot  al.  v.  Tomlinson  et  al.  1  Munf.  Va.  Rep.  183,  -  161  319 

Ditto  v.  Helmes  et  al.  2  J.  J.  Marshall's  Ky.  Rep.  129,  -                                   128 

Doe  et  al.  v.  Witton,  2  Bosanquet  <fc  Puller's  Rep.  324,    -  184 

Dorothee  v.  Coquillon  et  al.  19  Martin's  La.  Rep.  350,  -                                  198 

Dorsey  v.  Gassaway,,  2  Har.  «fc  Johns.  Md.  Rep.  402,  -                            55  166 

Dott  et  al  v.  Cunnington,  1  Bay's  S.  C.  Rep.  453,  184 

Donaldson  v.  Jude,  2  Bibb's  Ky.  Rep.  57,  284  329 

Duffee  v.  Mason,  8  Cowen's  N.  Y.  Rep.  25,  120  12S 

Dulany's  Opinion,  1  Har.  &  M'Hen.  Md.  Rep.  561,  -     25  191   184 

Dunbar  v.  Nichols,  10  Martin's  La.  Rep.  184,  -                    100 

"  v.  Williams,  10  Johnson's  N.  Y.  Rep.  249,  225 

Duncan  v.  Cevallo's  ex'rs,  4  Martin's  La.  Rep.  571,  136 

Dunn  v.  Amey  et  al.  1  Leigh's  Va.  Rep.  465r  330 

"    and  Wife  v,  Bray,  1  Call's  Va.  Rep.  338,  2  189 

Dtipree  v.  Harrington,  1  Harper's  S.  C.  Rep.  391,  70 

Durnford  v.  Brooks'  Syndics,  3  Marlins  La.  Rep.  222,  -                                   54 

E. 

Kchols  v.  Derrick,  2  Stewart's  Ala.  Rep.  144,  92 

Edwards  v.  Harbcn,  '2  Term  Rep,  587,  87  88  9*J 


TABLE  OF  CASES.  ix 

Eggington's  Case,  2  East,s  Pleas  of  the  Crown,  666,     t  &  ,-s       .*»  435 

Elam  v.  Bass'  ex'rs  4  Munf.  Va.  Rep.  301.  426 

Elmendorf  v.  Taylor,  10  Wheaton's  U.  S.  Rep.  152,         -  403 

Elmore  v.  Mill's,  Haywood's  N.  C.  Rep.  360,  82 

Emerson  v.  Howland  et  al.  1  Mason's  U.  S.  Rep.  45,         -  190  233 

English  v.  Lane,  1  Porter's  Ala.  Rep.  328,  175 

Enlaw's  ex'rs  v.  Enlaws,  3  J.  J.  Marshall's  Ky.  Rep.  229,  36  39 

Eppes  v.  M'Lemore,  3  Devereux's  N.  C.  Rep.  345,  430 

Erwin  et  al.  v.  Kilpatrick  etal.  3  Hawks'  N.  C.  Rep.  456,  23 

v.  Maxwell,  3  Murphy's  N.  C.  Rep.  241,  123 

Evans  v.  Kennedy,  1  Haywood's  N.  C.  Rep.  422,                             -  389 

Ewing's  heirs  v.  Handley's  ex'rs,  4  LittelPs  Ky.  Rep.  346,  58  185 

Ex  parte  Jesse  Brown,  2  Bailey's  S.  C.  Rep.  323,  222 

"      Ferrett,  1  S.  C.  Cons.  ct.  Rep.  194,  3 

11       Grace,  2  Haggard's  adm'v  Rep.  94,                      -              -  369 

"      Simons,  4  Washington's  C.  C.  Rep.  396,  372 

F. 

Fahnsworth  v.  Shepard,  6  Vermont  Rep.  521,  -  91 

Fanny  v.  Bryant,  4  J.  J.  Marshall's  Ky.  Rep.  368,  -  33 

44  v.  Kell,  MSS.  case  U.  S.  Court,  Dis.  of  Col.,  26 

Farrell  v.  Perry,  1  Haywood's  N.  C.  Rep.  2,  62 

Fenwick  v.  Macey's  ex'rs,  1  Dana's  Ky.  Rep.  276,  171 

Ferguson  et  al.  v.  Sarah,  4  J.  J.  Martin's  Ky.  Rep.  103,  -  280 

"  v.  White,  1  Marshall's  Ky.  Rep.  6,  80 

Field  v.  Buler  et  al.  3  Bibb's  Ky.  Rep.  18,  170 

Fields  v.  the  State  of  Tenn.  1  Yerger's  Tenn.  Rep.  156,  255 

Fightmaster  et  al.  v.  Beasley,  7  J.  J.  Marshall's  Rep.  410,  189 

Fisher's  negroes  v.  Dabbs  et  al.  6  Yerger's  Tenn.  Rep.  119,  287  387 
Fitzhugh's  v.  Anderson  et  al.  2  Hen.  and  Munf.  Va.  Rep.  289,  -  61  79  89 

et  ux.  v.  Foot  et  al.  3  Call's  Va.  Rep.  13,  183 

Flemings  v.  Willes  and  wife,  2  Call's  Va.  Rep.  5,  29 

Fletcher  v.  Howard,  2  Aiken's  Vt.  Rep.  1 15,  87 

v.  Peck,  6  Cranch's  U.  S.  Rep.  87,  91 

Forbes  v.  Cochrane  et  al,  2  Barn,  and  Cres.  Rep.  448,  -  365 

Forsyth  v.  Ellis,  4  J.  J.  Marshall's  Ky .  Rep.  298,  150 

"  et  al.  v.  Nash,  4  Martin's  La.  Rep.  385,  349  405 

Fox  v.  Lambson  et  al.  3  Halstead's  N.  J  Rep.  275,  392 

Frank  v.  Milane,  1  Bibb's  Ky.  Rep.  615,  32  34 

"  v.  Shannon's  ex'rs.  1  Bibb's  Ky.  Rep.  615,  33 

Free  Lucy  &  Frank  v.  Denham's  adm'r  4  Monroe's  Ky  Rep.  167,  190 

Fulton  v.  Lewis,  4  Har.  &,  Johns.  Md.  Rep.  564,  882 

a 

Gailard  v.  Labat  et  al.  6  Louisiana  Rep.  17,  134 

Galbrath  v.  Whyte,  Haywood's  Rep.  535,  123 

Garret  v.  Hewlett  ex'r  of  Dixon,  1  Har.  <fc  Johns.  Md.  Rep.  3,      -  53 

Garth's  ex'rs  v.  Barksdale,  5  Munf.  Va.  Rep.  101,  77  78  94 

Gaunt  v.  Brockman,  Hardin's  Ky.  Rep.  331,  61 

Gay  v.  Mosely,  2  Munf.  Va.  Rep.  543,  78  94 

George  et  al.  v.  Corse's  adm'r  2  Har.  &  Gill's  Md.  Rep.  1,  327 

v.  Elliott.  2  Hen.  &  Munf.  Va.  Rep.  5.  152  159 

Gibbon's  v.  Morse,  2  Halstead's  N.  J.  Rep.  253,  5  406 

Gilchrist  v.  Marrow,  2  N.  C.  Law  Repository  607,          <V            -  123 
B 


x  TABLE  OF  CASES 

Gillespie  v.  Gillespie,  2  Bibb's  Ky.  Rep.  8, 

Girod  v.  Lewis,  6  Martin's  La.  Rep.  559, 

Given's  et  al.  v.  Manns,  6  Munf.  Va.  Rep.  191,  -   182  238  2 

Glascock  v.  Wells,  1  Cook's  Tenn.  Rep.  262, 

Glasgow  v.  Flowers,  1  Hay  wood's  N.  C.  Rep.  233, 

Glen  v.  Hodges,  9  Johnson's  N.  Y.  Rep.  67 

Gober  v-  Gober,  2  Haywood's  N.  C.  Rep.  170, 

Gobu  v.  Gobi.,  1  Taylor's  N.  C.  Hep.  164,  -  *  7  < 

Gomez  v.  Boneval,  6  Martin's  La.  Hep.  656,  'SU 

Goodtitle  ex  dem  Peake  v.  Pogden,  2  Term  Reports  720, 

Goodwin  v.  Morgan,  1  Stewart's  Ala.  Rep.  278, 

Goodyire  v.  Ince,  2  Croke's  Rep.  246  2«^ 

Gordon  v.  Farquehar,  Peck's  Tenn.  Rep.  155, 

Gore  v.  Buzzard's  adm'rs,  4  Leigh's  Va.  Rep.  231, 

Graham  v.  Woodson,  2  Call's  Va.  Rep.  209, 

Graves  et  al.  v.  Downey  et  al.  3  Monroe's  Ky.  Rep.  354, 

Gregg  v.  Lessee  of  Sayre  &  Wife,  8  Conn.  Rep.  244, 

Gregory  v.  Eauirli,  2  Leigh's  Va.  Rep.  665, 

"     v.  Perkins,  4  Devereux's  N.  C.  Rep.  50, 
Gresham  v.  Gresham  et  al   6  Munf.  Va.  Rep.  187, 
Grice  v.  Jones,  1  Stewart's  Ala.  Rep.  254, 
Griffith  v.  Fanny,  Gilmer's  Va.  Rep.  143 
Grigsby  v.  Cleary,  5  Monroe's  Ky.  Rep.  514, 
Grimes  v.  Grimes,  2  Bibbs'  Ky.  Rep.  594. 
Groning  v.  Devana,  2  Bailey's  S.  C.  Rep.  192, 
Groves  v.  Kennon  &  Wife,  6  Monroe's  Ky.  Rep.  635,     * 

«       v.  Lucky,  1  Marshall's  Ky.  Rep.  74, 
Grundy's  heirs  v.  Jackson's  et  al.'l  Littell's  Ky.  Rep.  11. 
Gurner  v.  Dessies  1  Johnson's  N.  Y.  Rep.  508, 
Gurriere  v.  Lambeth,  9  La.  Rep.  339, 

H. 

Hall  v  Muilin,  5  Har.  <fc  Johns.  Md.  Rep.  190  7   10  58  311   385 

Hamilton  v.  Cragg,  6  Har.  &  M'Hen.  Md.  Rep.  16,  25  26  32  311  313  325 

"       v.  Russel,  7  Cranch's  U.  S.  Rep  309,  -     48  60  87  88  92  170 

Hancock  v.  Ship,  1  J.  J.  Marshall's  Ky.  Rep.  437, 
Haney  v.  Waddle,  3  Har.  &  Johns.  Md.  Rep.  557, 
Hanks  v.  M'Kee,  2  Littel's  Ky.  Rep.  227, 
Hardeson  v.  Hays,  4  Yerger's  Tenn.  Rep.  507, 
Harper  v.  Destrehan,  14  Martin's  La.  Rep.  389, 
Harris  v.  Clarissa  et  al.  6  Yerger's  Tenn.  Rep.  227, 

"     v.  Nicholas,  5  Munf.  Va.  Rep.  483, 
Harrison  v.  Brocks,  1  "  22,  425 

"         v.  Murrel,  5  Monroe's  Ky.  Rep.  359, 
Harry  et  al.  v.  Decker  &  Hopkins,  Walker's  Miss.  Rep.  36, 
Hart's  ex'rs  v.  Edwards,  2  Bailey's  S.  C.  Rep.  306, 
Hart  v.  Fanny  Ann,  6  Monroe's  Ky.  Rep.  49, 
•'    v.  Reeves,  5  Haywood's  N.  C.  Rep.  50, 
Harwood  v.  Simms,  Wight's  Ex.  Rep.  112, 
Hattier  v.  Etinaud,  2  Dess.  S.  C.  Rep.  570 
HawHns  v.  Brown  et  al.  7  Louisiana  Rep.  417. 

"       adrn'r  v.  Craig  and  Wife,  6  Monroe's  Ky.  Rep.  254,     2  38  40  182  225 
Head  v.  Hobbs  et  al.  1  J.  J.  Marshall's  Ky.  Rep.  283,      - 

»«  v,  M'Donald,  7  Monroe's  Ky.  Rep.  206, 


TABLE  OF  CASES.  xi 

Helm  v.  Miller,  17  Johnson's  N.  Y.  Rep.  296,  381 

Henderson  v.  Lightfoot,  5  Call's  Va.  Rep.  241,  426 

v.  Negro  Tom,  4  Har.  &  Johns.  Md.  Rep.  282, 

Hepp  v.  Parker,  20  Martin's  La.  Rep.  473,  117 

Higginbotham  v.  Rucker,  2  Call's  Va.  Rep.  313,  188  417 

Highlander  v.  Fluke  &  Vernon,  5  Martin's  La.  Rep.  442,  59 

Hinds  v.  Terry,  Walker's  Miss.  Rep.  80,  124 

Hobb's  v.  Bibb,  2  Stewart's  Ala.  Rep.  54,  71  93 

Hogg  v.  Keeler  et  al.  2  Nott  &  M'Cord's  S.  C.  Rep.  113,  279 

Holladay  <fc  Wife  v.  Littlepage,  2  Munf.  Va.  Rep.  539,     - 

Holliday  &  Wife  v.  Coleman  &  Wife,  "  162,    -  184 

Hollingsvvorth  v.  Napier,  3  Caines'  N.  Y,  Rep.  182, 

ilook  v.  Nanny  Pagee  et  al.  2  Munf.  Va.  Rep.  379,  -  19  22 

Hooper's  adrn'x  v.  Hooper,  1  Overton's  Tenn.  Rep.  187, 

Hope  v.  Johnson,  2  Yerger's  Tenn.  Rep.  123,  -     35  293  295 

Hopkin's  v.  Thompson,  2  Porter's  Ala.  Rep.  433, 

"     et  al.  v.  Fleet,  9  Johnson's  N.  Y.  Rep.  225,  307 

Hough  v.  Evans,  4  M'Cord's  S.  C.  Rep.  169, 
Houton  v.  Holliday,  1  N.  C.  Law  Repository  87, 

Hovenden  v.  Lord  Annesly,  2  Schoale  and  Lefroy's  Rep.  607,     -  172 

Howatt  &Co.  v.  Davis  et  al.  5  Munf.  Va.  Rep.  34, 
Hovvell  v.  Elliot,  1  Badger  &  Dev.  N.  C.  Rep.  76, 
Hudgins  v.  Wrights,  1  Hen.  &  Munf.  Va.  Rep  134,  (  3  12  18  19  22  392  394 

\  398  399  404  407 

Hudnal  v.  Wilder,  4  M'Cord's  S.  C.  Rep.  294, 
Hughes  v.  Graves  et  al  1  Littell's  Ky.  Rep.  317,  167 

"      v.  Negro  Mill y,  et  al.  5  Har.  &  Johns.  Md.  Rep.  310, 
Hunter  v.  Fulcher,  1  Leigh's  Va.  Rep.  172, 
Hutchin's  v.  Lee,  Walker's  Miss.  Rep.  293 
Hykes  &  Wife  v.  Whyte's  adm'r,  7  J.  J.  Marshall's  Ky.  Rep.  134, 

I. 

tear  v.  Suares,  7  Louisiana  Rep.  517, 
Isaac  v.  West's  exr.  6  Randolph's  Rep.  652, 

J. 

Jack  v.  Martin,  12  Wendell's  N»  Y.  Rep.  311. 
Jackson  v.  Lervey,  5  Cowen's  N.  Y.  Rep.  397, 
v.  Macey,  Hardin's  Ky.  Rep.  582, 
v.  Timmerman,  7  Wendell's  N.  Y.  Rep.  436,       - 
v.  Wetherell,  7  Serg.  &  Rawle's  Pa.  Rep.  480,  - 
James  v.  Gaither,  2  Har.  &  Johns.  Md.  Rep.  176, 
Jarrett  v.  Higbee,  5  Monroe's  Ky.  Rep.  546, 
Jenkins  v  Tom  et  al.,  1  Wash.  Va.  Rep.  123, 

Jennings  v.  Fundeburg,  4  McCord's  >.  C*  Rep.  161  201 

Johnson  et  ux  v.  Barret,  2  Bailey's  S.  C.  Rep*  562, 
"       v.  Hendley,  5  Munf.  Va/Rep.  219 

"      v.  Sevrers  ex'rs.,  4  Marshall's  Ky.    Rep.  141,        *  190 

Jones  v.  Bonden  et  al.,  4  Taunton's  Rep.  847, 

"     v.  Jones,  et  al ,  Cam.  &  Nor.  N.  C.  Rep.  310, 
Jourdan  Y.  Patton,  5  Martin's  La.  Rep.  615, 

Julien  v.  Langlish,  9  Martin's  La.  Rep.  205,  28o 

Justices  of  Mason  v.  Leo,  1  Monroe's  Ky.  Rep.  247,  37  < 


*ii  TABLE  OF  CASES. 

K. 

Keas  et  al.  v.  Yewell,  2  Dana's  Ky.  Rep.  248,  -  -                   154 

Keating  &  Wife  v.  Reynolds,  1  Bay's  S.  C.  Rep.  80,  .  184 

Keech  v.  Hall,  1  Douglass'  Rep.  2J,  .  178 

Keen  et  al.  v.  West,  3  Bibb's  Ky.  Rep.  39,  .  .                   189 

Kegler  v.  Mills,  1  Mar.  <fc  Yerg.  Tenn.  Rep.  426,  -  -         75  77  83 

Keith  v.'  Johnson  et  al.  1  Dana's  Ky.  Rep.  604,  .  .                    431 

Kennedy  v.  Ross,  2  Const.  Rep.  S"  C.  125,  .  87 

Kenningham  v.  M'Laughlin,  3  Monroe's  Ky.  Rep.  30,  -  90 

Kennon  v.  M'Roberts  &  Wife,  1  Wash.  Va.  Rep.  96,'  -  -                      28 

Kent  v.  Armistead,  4  Mum.  Va.  Rep.  72,  .  .                    433 

Kettletas  v.  Fleet,  7  Johns.  N.  Y.  Rep.  324,  .  .            151  233 

Kidd  v.  Rawlinson,  2  Bos.  &  Pull.  Rep.  59,  .  92 

King  v.  Cooper  ex'r  of  King,  Walker's  Miss.  Rep.  359,  .  .                    161 

Knight  &  Wife  v.  Thomas,  1  Hay  wood's  N.  C.  Rep.  289,  -  45 

L 

Labranche  v.  Watkin's,  4  Martin's  La.  Rep.  391,  .  .                   275 

Lady  Arundel  v.  Phips,  et  al.  10  Vesey  Jr.  Rep  140,  -  -                      92 

Land  et  al.  v.  Jeffries  et  al.  5  Randolph's  Va.  Rep.  211,  -  87 

Landreaux  et  a!,  v.  Campbell,  20  Martin's  La.  Rep.  478,  -  140 

Lanier  v.  Auld's  adm'r,  1  Murphy's  N.  C.  Rep.  138,  '  -  -           107  120 

Lawrence  v.  M'Farlane,  19  Martin's  La.  Rep.  558,  '  125 

Lay  et  al.  v.  Wilson,  4  Munf.  Va.  Rep.  313,  .  61 

Leadman  v.  Harris,  3  Devereux's  N.  C.  Rep.  144,  .  gg 

Lee  ex'r  of  Daniel  v.  Cooke,  1  Wash.  Va.  Rep  307  407 

Le  Grand  v.  Darnell,  2  Peters'  U.  S.  Rep.  664,  .  .                      53 

Lemon  v.  Reynolds  adm'r  of  Holmes,  5  Munf.  Va   Rep  552  395 

Lester  v.  Graham's  ex'rs,  1  S.  C.   Const.  Rep.  183  -  '  127 

Leverettet  al.  v.  Leverett  et  al.  2  M'Cord's  S.  C.  Ch'y  Rep  84  1  S8 
Lewis  v.  Cooper,  1  Cooke's  Tenn.  Rep.  467 

v.  Fullerton,  1  Randolph's  Va.  Rep.  15,  182  9<*8  9«J 
Link  v.  Beumer,3  Cainos'N.  Y.  Rep.  325, 


.      .          . 

Littleton  v.  Tuttle,  4  Mass.  Rep.  128, 
Livaudais'  heirs  v.  Fon  et  al.  8  Martin's  La.  Rep    161 
Loftin  v.  Espey  et  al.  4  Yerger's  Tenn.  Rep.  84, 


.          .       , 

Logan  v.  Withers,  3  J.  J.  Marshall's  Ky.  Rep.  389 

Long  v.  Blackall,  7  Term  Rep.  100,  , 

Lord  Cranstown  v.  Johnson,  3  Ves.  Jr.  Rep.  170, 

Louis  v.  Caharrus  et  al.  7  Louisiana.  Rep.  170,    '  .  047 

Ludlow  v.  Hurd  et  al.  19  Johnson's  N.  Y.  Rep.  218 

Lunsford  v.  Coquillon,  14  Martin's  La.  Rep.  401,  .  _  335  o^o  o— 

Lynch's  ex'r  v.  Ashe,  1  Hawk's  N.  C.  Rep.  338,  .  &H 

M. 

Macarty  v.  Bagnireis,  1  Martin's  La.  Rep.  149,  .  .„ 

Madry  v.  Young,  3  Louisiana  Rep.  160, 

Mahan  v.  James,  2  Bibb's  Ky.  Rep.  32, 

Mahony  v.  Ashton,  4  Har.  &  M'Hen.  Md.  Rep.  295  ^  j3 

Maria  et  al.  v.  Surbaugh,  2  Randolph's  Va.  Rep.  228        -  5*31  32  S2Q  QO! 

Mane  v.  Avart,  6  Martin's  La.  Rep   731 

Marie  Louisa  v.  Marot  et  al.  8  Louisiana.  Rep.  475, 

Markham  v.  Close,  2         "         581 

Marlin  v  Marlin,  3  Yerger's  Tenn.  Rep.  546^  "  " 


TABLE  OF  CASES.  xiii 

Martin's  admV  v.  White,  1  Stewart's  Ala.  Rep.  473,        -  -                      91 

Mary  v.  Morris,  et  al.,  7  Louisiana.  Rep.  135,  -           311  392 
41  v.  The  Vestry  of  Wm.  <fc  Mary's  parish,  3  Har.  &  M'Hen.  Md.  Rep.  501,     511 

Mason  v.  Mason's  ex'rs.  3  Bibb's  Ky.  Rep.  448  58 

Matilda  v.  Crenshaw,  4  Yerger's  Tenn.  Rep.  299,  409  411 

M'Campbell  v.  Gilbert's  adm'rs.  6  J.  J.  Marshall's  Ky.  Rep.  592,  37 

M'Cargo  ex'r.  of  CaUicott  v.  Callicott,  2  Munf.  Va.  Rep.  501,        -  181 

M'Cluney  v.  Lockhart  4  M'Cord's  S.  C.  Rep.  251,  -                     73 

M'Cutchen  et  al.  v.  Marshall  et  al.,  8  Peters'  U.  S.  Rep.  220,       -  35  279 

v.  Price  and  wife,  3  Hay  wood's  N.  C.  Rep,  211  -                    295 

M'Donald  v.  Clark,  4  M'Cord's  S.  C.  Rep.  223,  -                        1 

v.  M'Mullin,  2  S.  C.  Const.  Rep.  97,                >  -                      59 

M'Dowell  v.  Hall,  2  Bibb's  Ky.  Rep.  610,  165 

M'Dowell's  ad'mr.  et  al.  v.  Lawless,  6  Monroe's  Ky.  Rep.  141,      -  2  36 

M'Farlane  v.  Moore,  1  Overton's  Tenn.  Rep.  174,  130 

M'Ghee  v.  Ellis  <fc  Browning,  4  Littell's  Ky.  Rep.  244,    -  150 

M'Ginnis  v.  Jack  et  al.  Tenn.  Miss'y  -                     85 

M'Govven  v.  Hoy,  5  Littell's  Ky.  Rep.  243,  170 

M'Manus  v.  Crikett,  1  East's  Rep.  106,  232 

M'Ree  v.  Houston,  3  Murphy's  N.  C.  Rep.  429,  62 

Medley  v.  Jones,  5  Munf.  Va.  Rep.  9«,  185 

Medrazo  v.  Willes,  3  Barnwell  &  Alderson's  Rep.  353,     -  365 

Merry  v.  Chexnaider,  20  Martin's  La.  Rep.  699,  356 

Metayer  v.  Metayer,  6          "                   "          16,  -                     103 

41       v.  Noret,       5         "                 "         566,                -  -           103  104 

Meaux  v.  Caldwell,  2  Bibb's  Ky.  Rep.  244,  88 

Middleton  v.  Carrol,  4  J.  J.  Marshall's  Ky.  Rep.  143,        •  81  90 

"       v.  Fowler  et  al.  1  Salkeld's  Rep.  282,  232 

Miller  v.  Coffman,  19  Martin's  La.  Rep.  566,  125 

Milleur  et  al.  v.  Coupry,  20     "                  128,  128 

Miles  v.  James  &  Johnson,  1  M'Cord's  S.  C.  Rep.  157,    -  2 

Mims  v.  Mims,  3  J.  J.  Marshall's  Ky.  Rep.  103,  -     82  157  171 

Mima  v.  Butler,  MSS.  Case,  U.  S.  Court,  D.  C.,              -  -                   193 

Mitchell  v.  Dubois,  1  S.  C.  Const.  Rep.  360,                      -  -                    127 

v.  Wilson  MSS.  Case,  U.  S.  Court,  D.  C.  81 

Mockbee's  adm'r.  v.  Gardner  et  ux.  2  Har.  Gill's  Md.  Rep.  176,   -            148  150 

Moflfat  v.  Vion,  5  Louisiana  Rep.  346,  -                    234 

Monday  v.  Wilson  et  al*  4    "         338,                                 .  -                      55 

Montgomery  v.  Fletcher,  6  Randolph's  Va.  Rep.  612,      "*  -                    380 

Moore's  adm'r.  v.  Dawney  et  al.  3  Hen.  &  Munf.  Va.  Rep.  127,   -                61  71 

"       assignee  v.  King  et  al.  12  Martin's  La.  Rep.  261,  113 

"       exr.  v.  Aylett's  ex'r.  et  al.,  1  Hen.  &  Munf.  Va.  Rep.  29,  170 

Moorwood  v.  Wood,  14  East's  Rep.  327,  -                   400 

Moosa  v.  Allain  16  Martin's  La.  Rep.  99,  217 

Morgan's  heirs  v.  Boon's  heirs  et  al.,  4  Monroe's  Ky.  Rep.  291,     -  173 

"       v.  Morgan,  5  Day's  Conn.  Rep.  517,  184 

Morrow  et  al.  v.  Williams,  3  Devereux's  N.  C.  Rep.  263,  65 

Moses  v.  Denigree,  6  Randolph's  Va.  Rep.  561,  -                    311 

Moss  v.  Gallimore,  1  Douglass'  Rep  279,  -                    178 

Mowrey  et  al  v.  Walsh  8  Cowen's  N.  Y.  Rep.  238,  91 

Mumford  v.  M'Pherson,  1  Johnson's  N.  Y.  Rep.  414,        -  -                    175 

Munsel  adm'r.  of  Sneed  v.  Bartlett,  6  J.  J.  Mar.  Rep.  20,-  -              81  433 

Murray  v.  M'Carty,  2  Munf.  Va.  Rep.  393,                          -  -     339  378  379 


TABLE  OF  CASES. 

N. 


313 
24  3'23 


Nan  Mickel,  In  the  matter  of,  14  Johnson's  N.  Y.  Rep.  324, 

Ned  et  al.  v.  Beal,  2  Bibb's  Ky.  Rep.  298,  

Newby's  adrn'rs  v.  Blakey,  3  Hen.  &  Munf.  Va.  Rep.  57,  .   -       79  86  426 

Noel  &  Wife  v.  Garnettj  4  Call's  Va.  Rep.  92,  328 

NordenYCase,  2  East's  Pleas  of  the  Crown  666,  435 

O. 

Oatfield  v.  Waring,  14  Johnson's  N.  Y.  Rep.  188,  310  3S5 

Oneida  Man'g  So.  v.  Lawrence,  4  Co  wen's  N.  Y.  Rep.  440,  128    148 

Onslow  v.  Eames,  2  Starkie's  N.  P.  Cases  81,  107 

Orr  et  al.  v.  Pickett  et  al.  3  J.  J.  Marshall's  Ky.  Rep.  268,  82  89  90 

Ory's  Syndic's  v.  David,  9  Louisiana.  Rep.  59,  121 

Osgoods  v.  Lewis,  2  Har.  &  Gill's  Md.  Hep.  495,  120  148 

Overseers  of  Marbletown,  20  Johnson's  N.  Y.  Rep.  1,  199 

Owen  v.  Ford,  1  Harper's  S.  C.  Rep.  25,  136 

Owen's  heirs  v.  Stubblefield  et  al.  Tenn.  Miscellany,  230 

Ovvings  v.  Ueyuolds  et  al  4  liar.  &>  Johns.  Md.  Rep.  141,  184 

P. 

Palfrey  v.  Rivas,  7  Martin's  La  Rep.  371,  277 
Pallas  et  al  v.  Hill  et  al.  2  Hen.  &  Munf.  Va.  Rep.  143,     ,r             -       18  19  404 

Palmer  v.  Faucett,  2  Devereux's  N.  C.  Rep.  240,  43  44  46 

Parker  v.  Rule's  Lessee,  9  Cranch's  U.  S.  Rep.  64,  271 

"     &  Wife  v.  Phillips  1  Haywood's  N.  C.  Rep.  451,      -  62 

Parkhurst  et  al.  v.  Van  Courtlandt,  1  Johns.  N.  Y.  Chan.  Rep.  273.  175 

Parkinson  v.  Lee,  2  East's  Rep.  3 14,  107 

Partee  v.  Badget  et  al.  4  Yerger's  Tenn.  Rep.  174,  76 

Pasley  v.  Freeman,  3  Term  Rep.  51,                                    •  107 

Patten  v.  Smith  et  al.  4  Conn.  Rep.  455,  60  87  91 

Peabody  et  al.  v.  Carrol,  9  Martin's  La.  Rep.  295,  46 

Pearson  v.  Fisher,  1  N.  C.  Law  Repository  460,  62 
Pegram  v.  Isabell,  2  Hen.  &  Munf.  Va.  Rep.  193,                            -     31  407  411 

Pepper  v.  Thornton,  6  Monroe's  Ky.  Rep.  27,  150 

Perrie  v.  Williams,  17  Martin's  La.'  Rep.  694,  251 

Peter  et  al.  v.  Cureton  et  al.  MSS.  Case,  U.  S.  Court  D.  C.  26 

Peters  v.  Chares,  4  Yergor's  Tenn.  Rep.  176,  103 

Petry  v.  Christy,  19  Johnson's  N.  Y.  Rep.  53,  213 

Phillis  v.  Gentin,  9  Louisiana.  Rep.  208,  405  409 

Pierce  v.  Curtis  et  al.  6  Martin's  La.  Rep.  418,  54 

"      v.  Grayset  al.  5      "          "       "      367,  51 

Pilie  v.  Lalande  et  al.  19    "                   "      648,  147  195 

Pinson  et  al.  v.  Ivey,  1  Yerger's  Tenn.  Rep.  296,  230 
Pleasants  v.  Pleasants,  2  Call's  Va.  Rep.  296,     57  189  311  312  314  323  409  410 

Plumpton  v.  Cook,  2  Marshall's  Ky.  Rep.  450,  2  37  40 

Porter  v.  Bradley  et  al   3  Term  Rep.  143,  187 

"     v.  Butler,  3  Har,  <fc  M'Hen.  Md.  Kep.  168,  348 

Preston  v.  M'Gauchey,  Cook's  Tenn.  Rep.  113,  23  24 

Price  v.  Barr,  6  Littell's  Ky.  Rep.  216,  127 

Pringle  «fc  Wile  v.  M'Pherson  et  al.  2  Dess.  S.  C.  Rep.  524,  58 

Puller's  ex'rs  v.  Puller,  3  Randolph's  Va,  Rep.  83,  27 

Q. 

Quarles'  ex'r  v.  Quarles  et  al.  2  Munf.  Va.  Rep.  321,        -  185  319 

Queen,  Mima  and  child  v,  Hepburn,  7  Cranch's  U.  S.  Rep.  290,  -  883 


TABLE  OF  CASES  xv 

R. 

Ragan  v.  Kennedy,  1  Overton's  Tenn.  Rep.  91,  49 

Rankin  v.  Lydia,  2  Marshall's  Ky.  Rep.  467,  -  339  368  3S9 

Rawlings  v.  Boston,  3  Har.  &  M'Hen.  Md.  Rep.  139,  -                                  335 

Redding  v.  Hall  et  al.  1  Bibbs'  Ky.  Rep.  535,  -              -            155  156 

Redwood  v.  Reddick  <fc  Wife,  4  Munf.  Va.  Rep.  222,  -                                     38 

Reed  v.  Lansdale,  Hardin's  Ky.  Rep.  6,  -              -                     173 
Reno's  ex'rs  v.  Davis  &  Wife,  4  Hen.  &  Munf.  Va.  Rep.  283,      >        27  28  30 

Rinney  v.  May  field,  1  Haywood's  Rep.  165,  -              -                    197 

Revv  v.  Barber,  3  Cowen's  N.  Y.  Rep.  272,  148  149 

Rex  v.  Egginsrton,  2    East's  Pleas  of  the  Crown  666,  -                    435 

"     v.  M'Daniel,            "              "              "          665,  435 

Reynaud  et  al.  v.  Guillotte  et  al.  13  Martin's  La.  Rep.  227,                                  112 

Rhodes  v.  Holmes,  2  Hawk's  N.  C.  Rep.  193,  45 

Rice  v.  Hancock,  1  Harper's  S.  C.  Rep.  393,  -              -                       55 

Richardson  v.  Dukes,  4  M'Cord's  S.  C.  Rep.  156,  202 

Ripley  v.  Whitman,         "         "         "           447,  159 

Robertson  v/Campbell  et  al.  2  Call's  Va.  Rep.  421,  f<  ri           -            165  169 

v.  Ewell,  3  Munf  Va.  Rep.  1,  [  *             -                      48 

Robinson  v.  Culp,  1  S  .C.  Const  Rep.  231,  -              -                     264 

Roe  v.  JeflTn  y,  7  Term  Rep.  589,  -              -            184  187 

Rogers'  ex'rs  v.  Berry.  10  Johnson's  N.  Y.  Rep.  132,  196 

Roquet  v.  Richardson,  3  Louisiana  Rep.  452,  -              -                     446 

Ross  v.  Norvell,  1  Wash.  Va.  Rep.  14,  169  171  174  175 

Rouple  v.  M'Carty,  1  Bay's  S.  C.  Rep.  480  127 

Rowley  v.  Biselow  et  al.  1  Pick.  Mass.  Rep.  307,  '*,"                    91 

Royal  v.  Eppes  adm'r  of  Royal,  2  Munf.  Va.  Rep.  479,    -'.,  189  433 

Rucke's  adm'r  v.  Gilbert,  8  Leigh's  Va.  Rep.  8  316 

Rusk  v.  Sowerwine,  3  Har.  <fc  Johns.  Md.  Rep.  97,  198 

Rutherford  v.  M'Gowan,  1  Nott  &  M'Cord's  S.  C.  Rep.  17,  2 

Ryall  v.  Rowles,  1  Vesey  Senr.  Rep.  348,  178 

S. 

Sable  v.  Hitchcock,  2  Johnson's  N.  Y.  Cases  79,  -                                  381 

Sandford  v.  Roosa,  12  Johnson's  N.  Y.  Rep.  162,  273 

Saunders  v.  Wood,  5  Yerger's  Tenn.  Rep.  142,  -                                     416 

Sawney  v.  Carter,  6  Randolph's  Va.  Rep.  173,  -  233  237  284 

Scidmore  v.  Smith,  13  Johnson's  N.  Y.  Rep.  322,  -            248  442 

Scott  v.  Dobson,  1  Har.  &,  M'Hen.  Md.  Rep.  160,  25  26 

"     v.  Price,  2  Serg.  &  Rawle's  Pa.  Rep-  59,  -                                   184 

"     Williams,  1  Devereux's  N.  C.  Rep.  376,  406 

Scott  et  al  v.  Scott's  adm'r.  2  Marshall's  Ky.  Rep.  217,  **    ,  149 

T.  and  N.  Scudder  v.  Seals,  Walker's  Miss.  Rep.  155,  >'•           -                    160 

Seville  v.  Chretien,  5  Martin's  La.  Rep.  275,  8  12 

Shaw  et  al.  v.  Clements,  1  Calls.  Va.  Rep.  429,  -                     189 

Shelby  et  al.  v.  Guy,  11  Wheaton's  U.  S.  Rep  361,  77  86 

Shelton  v.  Barbour,  Washington's  Va.  Rep.  64,  -     31  407  411 

Shellon's  ex'rs.  v.  Shelton,  1           "                53,  28 

Shepherd  v.  Kain,  5  Barnwell  &  Alderson's  Rep.  240,  -              -    .                 147 

Shober  v.  Robinson  et  al.  2  Murphy's  N.  C.  Rep  33,  123 

Singleton  v.  Carrol,  6  J.  J.  Mar.  Ky.  Rep.  528,  -                    154 

Skinner  v.  Fleet,  14  Johnson's  N;  Y.  Rep.  263,  -              •.                     279 

Smart  v.  Baugh,  3  J.  J.  Mar.  Ky.  Rep.  363,  ;  *•»,        '  :*                       77 

Smith  v.  Bell^G  Peters'  U.  S.  Rep.  68,  184 


xvi  TABLE  OF  CASES 

44     v.  Bell  and  wife,  Martin  <fc  Yerger's  Tenn.  Rep.  302,  -  188 

"     v.  Hancock,  4  Bibb's  Ky.  Rep.  222,  -  239 

"     v.  Henry,  2  Bailey's  S.  C.  Rep.  118,  ...  87 

"     v.  Miller,  2  Bibb's  Ky.  Rep.  616,  131 

"     v.  Rowzee,  3  Marshall's  Ky.  Rep.  531,  119 

"       et"  ux  v.  Yeates,  1  Devereux's  N.  C.  Rep.  302,  -  43 

Snee  v.  Trice,  2  Bays.  S.  C.  Rep.  345,  231  232 

Sneed  v.  Ewing  and  wife,  5  J.  J.  Mar.  Ky.  Rep.  481,  •  -  37  40  184  433 

Somersetts  Case,  20  HowelPs  State  Trials  1,  -  -  363 

Somerville  v.  Johnson,  1  Har.  &  Johns.  Md.  Rep.  348,  -  25  26 

Somes  v.  Brewer,  2  Pick.  Mass.  Rep.  184,  91 

Spotts  v.  Gillaspie,  6  Randolph's  Va.  Rep.  566,  -  346 

Sprigg  v.  Negro  Mary,  3  Har.  &  Johns.  Md.  Rep.  491,  -  382 

Stafford  v.  Stafford,  17  Martin's  La.  Rep.  145.  -  161 

Stamps  v.  Beatty,  Hardin's  Ky.  Rep.  337,  -  -  435 

Stanley  v.  Earl,  5  Littell's  Ky.  Rep.  281,  -  79  80 

State  v.  Francis  Anone,  2  Nott  &  M'Cord's  S.  C.  Rep.  27,  232  441 

"     v.  Ben,  (a  slave,)  1  Hawks'  N.  C.  Rep.  434,  -  "  -  204 

"    v.  Boon,   Taylor's  N.  C.  Rep.  246,  212 

"    v.  Cecil,  2  Martin's  La.  Rep.  208,  -  7 

"    v.  Charity,  2  Devereux's  N.  C.  Rep.  543,  214 

"    v.  Cheatwood,  2  Hill's  S.  C.  Rep.  459,  -  243  250  251 

"    v.  Clemons,  3  Devereux's  N.  C.  Rep.  472,  -  163 

"    v.  Covington,  2  Bailey's  S.  C.  Rep.  569,  -  435 

"     v.  Davis  &  Hanna,    '             "                558,  -  -  4 

41    v.  Dawson,  2  Bay's  S.  C.  Rep.  360,  .  .  232 

44     v.  Fisher,  1  Har.  &  Johns.  Md.  Rep.  750,  -  -  196 

4k    v.  Hale,  2  Hawk's  N.  C.  Rep.  582,  .  239  244 

"    v.  Isaac,  2  Devereux's  N.  C.  Rep.  47,  -  -  235 

44    v.  Jim,  (a  slave)  1              44               142,  -  -  212 

44    v.  Jones,               2             44               48,  -  -  234 

44    v.       "       Walker's  Miss.  Rep.  83,  .  .  252 

"    v.  Lasselle,  1  Blackford's  lad.  Rep.  60,  -  -  352 

"    v.  Manor,  2  Hill's  S.  C.  Rep.  453,  -  .  243  244 

*4     v.  Mann,  2  Devereux's  N.  C.  Rep  263,  -  -  244 

44    v.  Mary  Hayes,  1  Bailey's  S.  C.  Rep.  275,  5  223 

44    v.  Miles,  2  Nott  &  M'Cord's  S.  C.  Rep,  4,  -  -  436 

44    v.  M'Graw,  Walker's  Miss.  Rep.  208,  -  435 

44    v.  Pemberton  &  Smith,  2  Devereux's  N.  C.  Rep.  281,  -  441 

44    v.  Raines,  3  M'Cord,s  S.  C.  Rep.  533,  -  .  203 

44    v.  Reed,  2  Hawk's  N.  C.  Rep.  216,  -  .  210 

14    v.  Sims,  2  Bailey's  S.  C.  Rep.  29,  .  _.  223 

•4    v.  E.  &  R.  Smith,  1  Nott  &,  M'Cord's  S.  C.  Rep.  13,  -  203 

41    v.  Sue,  (a  slave)  Cam.  &  Nor.  N.  C.  Rep.  54,  -  -  219 

44    v.  Tackett,  1  Hawk's  N.  C.  Rep.  216,  -  .  210 

44    v.  Thompson,  2  Overtoil's  Tenn.  Rep.  96,  .  3 

44    v.  Van  Waggoner,  1  Halstead's  N.  J.  Rep.  374.  -  -  12  20 

44    v.  Whyte  &.  Sadler,  2  Nott  &,  M'Cord's  S.  C.  Rep.  174,  fett'  434  436 

Standiford  et  al.  v.  Amoss,  1  Har.  &  Johns.  Md   Rep.  526,  -  26 

Stead's  ex'r  v.  Course,  4  Cranch's  U.  S.  Rep.  403,  -  *  271 

Sterling  v.  Vancleve,  7  Halstead's  N.  J.  Rep.  285,  .  87 

Stevenson  v.  Singleton,  1  Leigh's  Va.  Rep.  72,  •«* \  .  233  237 

Steward  v.  Lomb  et  al.  1  Brod.  &-  Bing.  Rep.  506,  J  *  92 

Stewart  v.  Oakes,  5  Har,  &  Johns.  Md.  Rep.  107,         j  V >.-  -  338 


TABLE  OF  CASES.  xvii 

Straw  bridge  v.  Turner  et  al.  9  Louisiana  Rep.  213,  447 

«'        v.  Warfield         4             "                20  147.  149 

St.  Homes  v.  Pore,  10  Martin's  La.  Rep.  30,  115 

Sturtevant  el  al.  v.  Ballard,  9  Johnson's  N.  Y.  Rep.  337,  -  61 

Sweet  v.  Colgate,                 20                                        196,  -  107 
Swift  et  al.  v.  Thomson,  9  Connecticut  Rep. 63,  " 

Sydnor  v.  Gee  et  al.  4  Leighs  Va.  Rep.  525,  60 

Sylvia  et  al.  v.  Covey,  4  Yerger's  Ten.  Rep.  297,  414 

T. 

Talbert  et  al.  v.  Jenny,  6  Randolph's  Va.  Rep,  159,  237 

Talcott  v.  Wilcox,  9  Connecticut  Rep.  134,  -   60.  61.  88.  91 

Taylor  v.  Ewbanks,  3  Marshall's  Ky.  Rep.  239,  71 

"  v.  Wallace  and  wife,  4  Call's  Va.  Rep.  92, 
Tenant  v.  Elliot,  1  Bosanquet  and  Puller's  Rep.  3, 

Texada  v.  Camp,  Walker's  Miss.  Rep.  150,  124 

The  Amelie,  Case  of,  1  Acton's  Reports  240,  364 

Antelope             "        10  Wheaton's  U.  S.  Rep.  66,  363 

Diana                   "         1  Dodson's  Rep.  95,  364 

La 'Louis            "          2  "                   210,  364 

Thelluson  v.  Woodford,  1  Bos.  and  Pul,  N.  Rep.  357,  - 

Thomas  v.  Jameson,  MSS.  Case,  U.  S.  Court,  D.  C.,  193 

"    v.  Soper,  5  Munf.  va.  Rep.  28,  48 

"    v,  Thomas's  adm'r,  2  Marshall's  Ky.  Rep.  430,  -                                    89 

"    v.  White  et  al.  3  Littell's  Ky.  177,  433 

"  and  wife  v.  Fanner,  6  Monroe's  Ky.  52,  37 

Thompson  v.  Caldwell,  3  Littell's  Ky.  Rep.  136,  79.  80.  86 

"    v.  D.  &J.   Davenport,  1  Washington's  va.  Rep.  125,                              174 

"    v.  W.  <fc  H.  Milburn,  13  Martin's  La.  Rep.  468,  107.  109 

"    v.  Patton,  5  Littell's  Ky.  Rep.  74,  -                                 174 

"    v.  Tate,  1  Murphy's  N.  C,  Rep.  97,  123 

"    v.  Wilmot,  1  Bibb's  Ky.  Rep.  422,  409 
Thrift  v.  Hannah  et  al.  2  Leigh's  Va.  Rep  .300, 

Timberlake  and  wife  v.  Graves,  6  Munf.  va.  Rep.  174,  -                                   1S9 

Timras  v.  Potter,  1  Haywood's  N.  C.  Rep.  234,  325.  326 

"                  Martin's  N.  C.  Rep.  22,  23. 24 

Timrod  v.  Sholbred,  1  Bay's  S.  C.  Rep.  324,  107. 127 

Tom,  [a  negro]   Case  of,  5  Johnson's  N.  Y.  Rep.  365,  309 

Trahan  v.  M'Manus  et  al.  2  Louisiana  Rep.  209,  55 

Travis  v.  Claiborne,  5  Munf  Va.  Rep.  435,  79 

Tribble  v.  Oldham,  5  J.  J.  Mar.  Ky.  Rep.  139,  128 

Trongot  v.  Byers,  5  Cowens  N.  Y/Rep.  480,  5 

Treudau's   Exr.  v.  Robinette,  4  Martin's  La.  Rep.  577,  -                          281.  307 

Turner  v.  Turner's  Ex'x.,  1  Washington's  Va.  Rep.  139,  -  61 
Twyne,  Case  of,  3  Cook's  Tenn.  Rep.  87, 

U. 

Ulzire  et  al.    v.  Poey  Farre,  14  Martin's  La.  Rep.  504,  -                                    18 

University  <fcc.  et  al.  v.  Cambreling,  6  Yerger's  Ten.  Rep.  79,       -  229 

U  pshaw  v.  Upshaw  et  al,  2  Hen.  and  Munf.  Va.  Rep.  381,-  57 

U.  States  v.  Bartow,  MSS.  Case,  U.  S.  Court  D.  C.  193 

V. 

Valsain  et  al.  v.  Cloutier,  3  Louisiana  Rep.  170, 

Vandervoort  v.  Col.  Ins.  Co.,  2  Caine's  N.  Y.  Rep.  154,  -  175 


TABLE  OF  CASES. 


Vaughan  v.  Phebe,  1  Martin  &  Yerger's  Ten.  Rep.  1, 
Verdier  v.  Leprete,  4  Louisiana  Rep.  41, 
Victoire  v.  Dussuau,  4  Martin's  La.  Rep.  212, 
Violette  v.  H.  VV.  Ball.  MSS.  Case  U.  S.  Court,  D.  C.     • 

W. 

Wadon's  ex'r.  v.  Payne,  2  Washington's,  Va.  Rep.  1. 
Walker's  ex'rs  v.  Bostick  et.  al,  4  Dess  S.  C.  Rep.  266.     - 
Wallace  v.  Frazier,  2  Nott  &  M'Cord,  S.  C.  Rep.  516.      - 

"       and  wife,  v.  Taliaferro  and  wife,  2  Calls,  Va.  Rep.  447.  - 
Walls  v.  Hemsley,  et.  al.,  4  Har.  &  John's  Md.  Rep.  243. 
Walters  v.  Mattingly,  1  Bibb's  Ky.  Rep,  244. 
Walthalls  ex'r.  v.  Robertson,  et.  al.,  2  Leigh's,  Va.  Rep,  189. 
Walton's  heirs,  v.  Walton's  ex'rs,,  3  J.  J.  Mar.  Ky.  Rep.  58. 
Wash  et.  al.  v.  Medley,  1  Dana's  Ky.  Rep.  269. 
Watkins  v.  Burch,  et.  al.,  4  Tannton's  Rep.  823. 

v.  Stockett's  ad'r.,  6  Har.  &  John's  Md,  Rep.  435. 
Wells,  v.  Kennerly,  4  M'Cord's  S.  C.  Rep.  123. 

"     v.  Lane,  9  Johnson's  N.  Y.  Rep.  144. 
Welsh  v.  Haydens  ex'rf,  1  Pennsylvania  Rep.  57. 
White  v.  Chambers,  2  Bay's  S.  C.  Rep.  70. 

"    v.  Helmes,  1  M'Cord's  S.  C.  Rep.  430 
Whitney  v.  Button,  10  Wendell's  N.  Y.  Rep.  411. 
Wilkinson  v.  South,  7  Term  Reports  555. 
Williams  v.  Blincoe,  5  LittelPs,Ky.  Rep.  171. 

u         v.  Holcombe,  1  N.  C.  Law  Repository  365, 
«         v.  Horton,  16  Martin's  La.  Rep.  464. 
"         v.  Moore,  3  Munf.  Va.  Rep.  310. 
"         et.  al.  v.  Spafford,  8  Pick.  Mass.  Rep.  250. 
Williamson  et.  al.  v.  Daniel  et.  al.,  12  Wheaton's  U.  S  Rep.  568. 
Willingham  v.  Joyce,  3  Vesey  jr.  Rep.  168. 
Wilson  v.  Isabell,  5  Call's  Va.  Rep.  425. 

"     v.  Shackford,  4  Randolph's  Va.  Rep.  5. 
Winchendon  v.  Hatfield,  4  Massachusetts  Rep.  123. 
Wingis  v.  Smith,  3  M'Cord's  S.  C.  Rep.  400. 
Winney  v.  Cartright,  3  Marshall's  Ky.  Rep.  495. 
Wise  v,  Freshley  &  Veal,  3  M'Cord's  S.  C.  Rep.  547.     - 
Withers  v.  Smith,  4  Bibb's  Ky.  Rep.  172. 

Witsell  v.  Earnest  <fc  Parker,  1  N.  &-  M'Cord's  S.  C.  Rep.  182. 
Wolf  v.  O'Farrel,  S.  C.  Cons.  Ct.  Rep.  151. 
Woodward's  heirs  v.  Therlkeld,  1  Marshall's  Ky.  Rep.  10. 
Wright  v.  Gray,  2  Bay's  S.  C.  Rep.  404. 

X. 

Xenes  v.  Taquino,  et.  al.,  19  Martin's  La.  Rep.  678. 

Y. 

Young  v.  Bruce,  5  Littell's  Ky.  Rep.  324. 

"     v.  Forgery,  4  Haywood's  Ten.  Rep.  11. 
<l    v.  Wiseman,  7  Monroe's  Ky.  Rep.  270. 
«    et.  al.  v,  Covell,  8  Johnson's  N.  Y.  Rep,  23. 
>«    v,  Pate  et.  al.,  Yerger's  Ten.  Rep.  164. 

Z. 

2anico  v.  Habime,  5  Martin's  La,  Rep.  372. 


395,413 

89,91,164 

334 

381 


2 

6,58,191 

202 

38,58 

395 

120,132 

315 

59 

87 

92 

91,175 

225,226 

404 

87 

243 

194,224 

107,128 

187 

195 

155 

66 

68 

107 

34 

169 

355 

107 

361 

230 

2843,29 

toe 

80 
202 
177 
433 
201 


PRACTICAL  TREATISE 


ON 


THE  LAW  OF   SLAVERY 


I.  DEFINITION  AND  NATURE  OF.* 

1. 
CLARK  v.  M'DONALD.     June  T.  1827.     4  M'Cord's  Rep.  223. 

THE  action  was  brought  against  the  defendant,  as  a  common  distinction* 
carrier,  to  recover  the  value  of  a  nearo  woman  and  her  child,  who  b,etw.e?  ~. 

0  the  liability 

were  passengers  on  board  the  defendant's  boat  from  Charleston  to  of  a  carrier 
George  Town.     The  boat  came  to  an  anchor  at  night  at  one  of  ana  a  bale 


the  inland  creeks  between  those  places,  and  at  the   ebb   of  the  °  g°of~ 

slaves    be 


tide  the  boat  filled,  and  the  slave  and  her  child  were  lost.    The  cap-  i«g 
tain  used  all  necessary  diligence,  and  had  a  pilot  on  board.     The  human  be- 
judge  charged  the  jury,  that  there  was  no  difference  in  the  liability  mgs' 
of  the  defendant,  as  captain  of  a   steam-boat,  for  the  loss  of  the 
slaves,  than  for  the  loss  of  bales  of  goods.     Verdict  for  plaintiff. 
Motion  for  a  new  trial. 

The  Court.  Johnson,  J.,  held  there  must  be  a  new  trial  ;  that 
there  was  a  distinction  between  the  liability  of  the  carrier  in  the  trans 
portation  of  a  slave  and  a  bale  of  goods  ;  that  the  slave  was  a  hu 
man  being,  and  the  carrier  could  not  control  the  operations  of  her 
mind,  or  her  physical  action.  She  might  will  her  own  destruction, 
or  she  might  escape.  And  his  honor,  after  referring  to  the  cases 

*  The  definition  of  a  slave  by  the  Civil  Code  of  Louisiana  is  thus  given:  "  A  slave 
is  one  who  is  in  the  power  of  a  master  to  whom  he  belongs."  Civil  Code,  art.  35. 
and  173. 

2 


SLAVERY, 

of  Rutherford  v.  M'Gcwan,  1  Nott  &  M'Cord,  p.  17. ;  Cook  v. 
:(5ojir.dini  $  .J^.Qtt  &  M'Cord,  p.  19. ;  and  Miles  v.  Johnson,  1  Nott  & 
M'C.,  157,,  which  he  contended  was  not  analogous,  observed,  that 
.  the  question  ought  to  have  been  left  to  the  jury,  whether  the  ac 
cident  happened  by  the  negligence  of  the  carrier,  or  the  act  of 
the  slave,  or  by  inevitable  accident. 


STATE  v.  THOMPSON.     Sept.  1807.     2  Overton's  Rep,  96. 
Capable  of     Held  by  the  Court,  Ower/cn,  J.?  that  where  the  defendant  forcibly 
volition,      took  a  negro  woman  from  the  possession  of  another,  under  a  claim 
of  property,  an  indictment  would  lie   against  him.     Slaves  differ 
from  all  other  property  :   they  have  reason  and  volition.     Where  a 
slave  is  in  the  possession,  or  in  the  ordinary  employment  of  a  per 
son,  and  another  takes  such  slave  away,  it  should  not  be  matter 
of  inquiry  in  this  court  whether   the  negro  was  willing  to  go   or 
,    not. 

3. 

WALDON'S  EX'R  v.  PAYNE.     Fall  T.,  1794.     2  Wash.  Rep.,  1.  8. 

HAWKIN'S  ADM'R.  v.   CRAIG,     6  Monroe's  Rep.  254. 

And  they  Per  Cur.  Slaves,  from  their  nature,  are  chattels,  and  were  put 
deredC°hAt-  in  the  hands  of  executors  before  the  act  of  1792,  declaring  them  to 
tels>  be  personal  estate. 

4. 
BEATLY  v.   JUDY,  ET   AL.     Spring  T.,  1833.  1  Dana's  Rep.    101. 

PLUMPTON  v.  COOK,  2  Marshall's  Rep.  450. 
So  they  are      Per  Cur.     The  phrase   '•'  personal   estate,"  in   wills   and  con* 

considered  ,  ,          ,     -\  -, 

personal     tracts,  should  be  construed  as  embracing  slaves, 

estate. 

5. 

MCDOWELL'S  ADM'X  v.  LAWLESS.  Oct.  T.  1827.  6  Monroe's  Rep. 
141.  DADE  v.  ALEXANDER,  1  Wash.  Rep.  30.  WALDEN  v. 
PAYNE,  2  Wash.  Rep.,  1.  DUNN  AND  WIFE  v.  BRAY,  1 
Call,  338,  CHINN  AND  WIFE  v.  RESPASS,  1  Monroe's 
Rep.  23. 

And  are  for      Per  Cur.     Slaves  were  declared  by  law  to  be  real  estate,  and 
"oses  ?eal  descend  *°  *ne  ^eiT  at  ^aw<     They  are   considered  real  estate  in 

estate.          (Jle  case  of  descents. 


DEFINITION  AND  NATURE  OF. 


6. 
HUDGINS  v.  WRIGHTS.     Nov.  1806.  1  Hen.  &  Munf.  134. 

Per  Cur.  Tucker,  J.  From  the  first  settlement  of  the  colony  Wh0  are 
of  Virginia  to  the  year  1778  Oct.  sess.,  all  negroes,  Moors,  and  mu-slaves- 
lattoes,  except  Turks  and  Moors  in  amity  with  Great  Britain,  brought 
into  this  country  by  sea  or  by  land,  were  slaves,  and  by  the  uniform 
declaration  of  our  laws,  the  descendants  of  females  remain  slaves  to 
this  day,  unless  they  can  prove  a  right  to  freedom  by  actual 
emancipation,  or  by  descent  in  maternal  line  from  an  emancipated 
female.  See  the  case  ex  parte  Ferrett,  1  Rep.  Const.  Court  of 
South  Carolina,  p.  194.  where  the  court  held,  that  an  East  Indian, 
though  il  a  person  of  color,"  is  not  liable  to  be  taxed  under  the  or 
dinance  of  the  city  council  of  Charleston,  imposing  a  duty  on 
"  each  free  negro,  or  person  of  color,  whether  a  descendant  of  a 
negro  or  otherwise." 

7. 

HUDGINS   v.   WEIGHS.     Nov.  1806.   1  Hen.  &   Munf.  134. 
Held  by  the  court,  Green  J.,  that  to  solve  all  doubts,  the  act  of  The  ru]e 
1662  was  passed,  which  declared,  that  all  children  born  in  this  Par,tus  se~ 

,,,,,,  ,,  ,.  quitiir  veu- 

country  shall   be  bond  or  free,  according  to  the  condition  of  the  trem  ob- 
mother.     It  is  the  rule  of  the  civil  law.     By  that  law  the  civil  state 
of  the  child  was  determined  by  that  of  the  mother  at  the  time  of 
the  birth. 


*  This  rule  of  the  Civil  Law  prevails  in  all  the  states,  and  in  many  of  them  sta 
tutes  have  been  enacted  upon  the  subject.  See  act  of  1740,  South  Carolina,  2 
Brevard's  Dig.  229.  And  in  Georgia,  by  the  act  of  1770,  Prince's  Dig.  446.  And  by 
the  Rev.  Code  of  Mississippi,  369.  Rev.  Code  of  Virginia,  vol.  1.  p.  421.  Civil 
Code  of  Louisiana,  art.  183.  And  the  same  rule,  that  slaves  follow  the  condition  of 
the  mother,  obtains  in  the  West  Indies.  Edward's  West  Indies,  book  4.  ch.  1.  This 
rule  was  broken  in  upon  in  Maryland  by  an  act  passed  in  the  year  1663,  ch.  30, 
which  establishes  the  common  law  doctrine,  partits  sequiiur  patrem.  See  the  cases  of 
Butler  v.  Craig,  2  Harris  &  M'Hen.  214.  and  Butler  v.  Boardman,  1  Har.  & 
M'Hen.  371.  The  law  was,  however,  changed  by  the  act  of  1715,  which  restored  the 
maxim  of  the  civil  law,  partus  sequiiur  ventrem. 


4  SLAVERY. 

8. 
STATE  v.  DAVIS  AND  HANNA,  Dec.  T.  1831.  2  Bailey's  Rep.  558. 

Definition      The  defendants  were  indicted  under  the  bastardy  act,  and  on 
term°nm-e  tne  mother's  being  called  as  a  witness,  it  was  objected  that  she  was 
latto.          a  mulatto  ;  but  the  jury  found  them  white  women.     The  defend 
ants  were  convicted,  and  moved  to  set  aside  the  verdict,  on  the 
ground  of  misdirection  in  the  charge  of  the  court. 

The  court  observed  that  the  term  mulatto,  as  used  in  this 
state,  was  vague,  and  signified,  in  general,  a  person  of  mixed  white 
and  negro  blood,  in  whatever  proportions  it  might  be  mingled. 
The  various  distinctions  which  have  obtained  in  the  French  and 
Spanish  American  colonies  has  not  been  adopted  in  this  state. 

Harper  J.,  in  delivering  the  opinion  of  the  court,  observed,  that 
it  seemed  to  be  an  error  in  the  judge's  charge  to  the  jury,  in 
stating,  that  "  a  mulatto  was  the  offspring  of  parents,  one  of  whom 
was  white,  and  the  other  black,"  and  that  he  "  was  disposed  to 
think,  that  where  the  white  blood  predominated,  the  disqualifica 
tion  ought  not  to  attach."  According  to  this  instruction,  we 
understand,  that  the  child  of  a  quadroon  and  a  mulatto,  according 
to  the  distinction  in  Louisiana,  must  be  accounted  white.  Yet,  I 
suppose,  that  even  in  Louisiana  such  a  person  would  be  called  a 
mulatto.  It  is  certainly  true,  as  laid  down  by  the  presiding  judge, 
that  "  every  admixture  of  African  blood  with  the  European,  or 
white,  is  not  to  be  referred  to  the  degraded  class."  It  would  be  dan 
gerous  and  cruel  to  subject  to  this  disqualification  a  person  bearing 
all  the  features  of  a  white,  on  account  of  some  remote  admixture  of 
negro  blood  ;  nor  has  the  term  mulatto,  or  person  of  color,  I  believe, 
been  popularly  attributed  to  such  person.  The  shades  are  infinite, 
and  it  is  difficult  to  fix  a  limit.  I  do  not  know  that  we  can  lay 
down  any  other  rule  than  to  give  what  appears  to  be  the  popular 
meaning  of  the  word  :  to  wit,  that  where  there  is  a  distinct  and 
visible  admixture  of  negro  blood,  the  person  is  to  be  denominated 
a  mulatto,  or  person  of  color.  It  is  a  question  for  the  jury.  In 
determining  it,  they  may  have  the  evidence  of  inspection  as  to 
color,  and  the  peculiar  negro  features  ;  the  evidence  of  reputation, 
as  to  parentage ;  and  such  evidence  as  was  offered  in  the  present 
case,  of  the  person  having  been  received  in  society,  and  exercised 
the  privilege  of  a  white  man. 


DEFINITION  AND  NATURE  OF.  5 

9. 
THE  STATE  v.  MARY  HAYES.   June  T.  1829.    1  Bailey's  Rep. 

The  prisoner  was  indicted  and  convicted  of  keeping  a  disorderly  And  may 

be    known 
house.  by   inspec- 

When  brought  up  for  sentence,  O'Neal,  J.,  decided,  that  the  tlon'* 
offspring*  of  a  white  mother  and  a  negro  father  is  a  "  mulatto," 
within  the  meaning  of  the  statute  of  1740,  and  can  be  punished 
only  by  the  tribunal  specified  by  the  statute.  And  if  a  mulatto  be 
convicted  in  a  court  of  sessions,  the  judge  may,  on  inspection,  re 
fuse  to  pass  sentence,  and  turn  over  the  prisoner  to  a  court  of 
magistrates  and  freeholders. 

10. 

MARIA  ET  AL.  v.  SURBAUGH.  FEB.  T.  1825.  2  Rand.  Rep.  228. ;  NE 
GRO  MARY  v.  THE  VESTRY  OF  WILLIAM  AND  MARY'S  PARISH, 
3  Har  £  M'Hen.  Rep.  501.  ;  DAVIS  v.  CURRY,  2  Bibb's 
Rep.  238.  ;  2  Haywood's  Rep.  170.;  MAHONYV.  ASHTON,  4 
Har  &  M'Hen.  305.  ;  GOBU  v.  GOBU,  1  Taylor's  Rep.  114. ; 
GOBU  v.  GOBU,  2  Hayn's  Rep.  170.;  DAVIS  v.  CURRY,  2 
Bibb's  Rep.  238. ;  GIBBONS  v.  MORSE,  3  Halst.  Rep.  253. ; 
HALL  v.  MULLIN,  5  Har.  &  Johns.  Rep.  190.  ;  TRONGOT  v. 
BYERS,  5  Cowen's  Rep.  480. 

Per  Cur.  Green,  J.  Negro  slaves  were  introduced  in  Vir-  Every  ne- 
ginia  in  1620.  They  were  always  held  as  property,  and  the  Jrm  lsd  prtej 
children  of  female  slaves  were  always  held  as  slaves.  be  a  slave.* 

11. 

DAVIS   (a  man  of  color)  v.  CURRY.     Fall.  T.   1810.     2  Bibb's 

Rep.  238. 

Suit  for  freedom.  The  defendant  relied  on  possession  of  the  Or  person 
plaintiff  as  a  slave  from  the  year  1789  ;  and  on  the  presumption  of  ofcolor- 

*  In  the  Spanish  and  French  West  Indies,  the  following  grades  are  distinguished  : 
The  first  grade  is  that  of  the  mulatto,  which  is  the  intermixture  of  a  white  person 
with  a  negro ;    the  second  are  the  tercerones,  which  are  the  production  of  a  white 
person  and  a  mulatto  ;  the  third  grade  are  the  quarterones,  being  the  issue  of  a  white 
person  and  a  tercerone  ;  and  the  last  are  the  quinteron*s,  being  the  issue  of  a  white 
person  and  a  quarterone.   Beyond  this  there  is  no  degradation  ofcolor,  not  being  distin 
guishable  from  white  persons,  either  by  color  or  feature.  Edwards'  West  Indies,  book 
4.  ch.  1.     Stephens'  Slavery  of  the  West  India  Colonies  Delineated,  p.  27. 

*  This  is  the  general  doctrine  in  all  the  states,  and  the  application  of  a  different 
rule  is  only  in  cases  where  the  person  is  a  mulatto,  or  some  other  grade  approxi 
mating  to  a  white  person.    See  post,  title  "  Evidence,"  in  actions  for  freedom.. 


6  SLAVERY, 

slavery  arising  from  color,  as  being  sufficient  evidence  of  title  in 
him,  to  put  the  plaintiff  on  proof  of  his  freedom.  And  of  this 
opinion  was  the  court,  and  the  plaintiff  excepted. 

Per  Cur.  Boyle,  Ch.  J.  The  question  admits  of  but  little  doubt. 
Color  and  long  possession  are  such  presumptive  evidences  of 
slavery,  as  to  throw  the  burden  of  proof  on  the  party  claiming  his 
freedom. 

12. 

BRANDON  ET.  AL.V.  PLANTERS'  AND  MERCHANTS'  BANK  OF  HUNTS- 
VILLE.  Jan.  T.  1828.  1  Stewart's  Rep.  320.  S.  P.  BYNUM 
v.  BOSWICK,  4  Dessauss.  266. 

They  can-      Trover  for  bank  notes  found  by  the  plaintiff's  negro.     It  ap- 

or  ^o^less6  peared  by  the  testimony  of  witnesses,  that  they  were  standing 

property.    near  tne  engine  house   at  the  public  square  in  Huntsville,  when 

the  negro  boy  was  cutting  wood  near,  and  heard  him  exclaim  he 

had    found  money,  and  saw  the  boy  raising  the  bundle.     The 

boy  delivered  the  bundle  to  Brown,  one  of  the  witnesses,  who 

took  it  to  the  bank.     The  plaintiff  demanded  the   money  of  the 

bank,  which  was  refused,  and  this  action  was  commenced.     The 

defendants  demurred  to  the  declaration  of  the  plaintiffs. 

The  court  held,  that  the  action  would  lie  ;  and  that  the  posses 
sion  of  the  slave,  by  rinding,  is  the  possession  of  the  master,  and  if 
it  be  taken  from  the  slave  by  any  person  other  than  the  true 
owner,  the  master  may  receive  it. 

Per  Cur.  Saffold,  J.  Our  slaves  can  do  nothing  in  their  own 
right ;  can  hold  no  property  ;  can  neither  buy,  sell,  barter,  or  dis 
pose  of  any  thing,  without  express  permission  from  the  master  or 
overseer ;  so  that  every  thing  that  they  can  possess  or  do  is,  in 
legal  contemplation,  on  the  authority  of  the  master. 

Per  Crenshaw,  J.  A  slave  is  in  absolute  bondage  ;  he  has  no 
civil  right,  and  can  hold  no  property,  except  at  the  will  and  plea 
sure  of  his  master  ;  and  his  master  is  his  guardian  and  protector  ; 
and  all  his  rights  and  acquisitions  and  services  are  in  the  hands  of 
his  master.  A  slave  is  a  rational  being,  endowed  with  volition  and 
understanding  like  the  rest  of  mankind,  and  whatever  he  lawfully 
acquires,  and  gains  possession  of,  by  finding,  or  otherwise,  is  the 
acquirement  and  possession  of  the  master.  A  slave  cannot  take 


DEFINITION  AND  NATURE  OF.  7 

property  by  descent  or  purchase.*  And  see  HALL  v.  MULLEN, 
5  Har.  &  Johns.  190.  Where  the  court  held,  that  no  legal  con 
tract  whatever  could  be  made  with  a  slave  without  the  consent  of 
his  master.  And  in  Jackson,  ex.  dem.  THE  PEOPLE,  v.  LERVEY, 
5  Cowen's  Rep.  397.,  the  court  held,  that  a  slave  at  common  law 
could  not  contract  matrimony,  nor  could  the  child  of  a  slave  take 
by  descent  or  purchase. 

13. 

STATE  v.   CECIL.     Spring  T.*  1812.     2  Martin's  Louisiana  Rep. 
208.;     GOBU  v.   GOBU.     1  Taylor's  Rep.  164. 

A  woman  of  color  was  offered  as  a  witness  by  the  attorney  Colored 
general  ;  and  a  gentleman  swore  that  she  was  once  a  slave,  but  he  persons  are 
had  liberated  her.     She  had  a  copy  of  the  act  of  liberation;  but  the  fre^e"^!! 
original  of  which  was  in  New-York.     The  council  for  the  prisoner  cs^[u  ca~ 
insisted  that  the  court  ought  not  to  look  at  the  copy,  while  the  origi 
nal  is  admitted  to  exist. 

Per  Cur.  The  woman  being  of  color,  the  presumption  is  that 
she  was  free  born.  ADELE  v.  BEAUREGARD,  1  Martin,  183. 
But  this  presumption  is  destroyed  by  the  declaration  of  her  former 
master.  This  declaration,  however,  must  be  taken  in  toto  ;  and  it 


*  By  the  Civil  Code  of  Louisiana,  art  175.,  it  is  declared,  that  "  all  that  a  slave  pos 
sesses  belongs  to  his  master ;  he  possesses  nothing  of  his  own,  except  his  peculium, 
that  is  to  say,  the  sum  of  money  or  moveable  estate,  which  his  master  chooses  he 
should  possess."  "  Slaves  are  incapable  of  inheriting  or  transmitting  property." 
Art  945.  "  Slaves  cannot  dispose  pf,  or  receive  by  donation,  intervivos,  or  mortis 
causa,  unless  they  have  been  previously  and  .expressly  enfranchised  conformably  to 
law,  or  unless  they  are  expressly  enfranchised  by  the  act  by  which  the  donation  is 
made  to  them."  Art  1462.  The  earnings  of  slaves  and  the  price  of  their  services 
belong  to  their  owners,  who  have  their  action  to  recover  the  amount  from  those  who 
have  employed  them.  Code  of  Practice,  art  103.  These  principles  prevail  in  all 
the  states,  and  are  taken  from  the  civil  law,  and  were  adopted  in  all  except  Connec 
ticut,  and  perhaps  Massachusetts.  Massachusetts'  Historical  Collections,  vol.  4. 
p.  194.  Dane's  Abr,  ch.  46.  art.  2.  Reeves'  Domestic  Relations,  340. ;  Bancroft's 
History,  vol.  1.  p.  187, ;  2  Kent's  Com.  252.  They  are  far  more  rigorous  than  the 
Spanish  and  Portuguese  laws  applied  to  slaves  in  their  colonies ;  for  by  their  laws  a 
slave  may  acquire  money  or  property  by  his  labor,  at  periods  set  apart  for  his  own 
use  and  benefit,  and  the  law  will  protect  him  in  the  possession  of  it.  Stevens  on 
Slavery,  p.  59,  60.  Wraxall's  Memoirs,  vol.  2.  letter  21.  Stroud's  Sketch  of  the 
Laws  relating  to  Slavery,  p.  46,  The  legislative  enactments  in  the  several  states, 
prohibiting  the  slave  from  acquiring  or  holding  property,  or  hiring  himself,  &c,, 
may  be  found  in  the  following  references :  In  South  Carolina,  James'  Dig,  385, 
In  Georgia,  Prince's,  Dig.  453. ;  in  Kentucky,  2  Litt.  &  Swi.  Dig.  1150. ;  1  Rev 
Code  of  Virginia,  374. ;  Mississippi  Rev.  Code,  375 ;  Laws  of  Tennesee,  Oct.  23, 
1813.  ch.  135. ;  in  North  Carolina,  Haywood's  Manual,  526, ;  Rev.  Stat.  of  Missouri , 
p. 581. 


SLAVERY. 

establishes  her  emancipation  in  the  same  breath.  Neither  are  we 
ready  to  say,  that  when,  in  the  trial  of  a  cause,  a  fact  comes  inci 
dentally  and  collaterally  to  be  proved,  the  rules  of  evidence  are  as 
strictly  to  be  insisted  on,  as  when  the  fact  put  in  issue  is  to  be  made 
out.  In  the  latter  case  the  party  has  previous  notice,  and  time 
to  procure  the  best  testimony,  which,  consequently,  will  be  re 
quired.  Not  so  in  the  former  case,  as  on  a  motion  for  a  new  trial, 
or  for  a  continuance,  when  a  witness  is  examined  on  his  voir  dire. 
Witness  sworn. 


II.  ORIGIN  AND  HISTORY  OF.* 

1. 

SEVILLE  v.  CHRETIEN.      Sept.  T.  1817.     5  Martin's  Louisiana 

Rep.  275. 

Origin  and  Per  Cur.  Porter,  J.  It  is  an  admitted  principle,  that  slavery  has 
been  permitted  and  tolerated  in  all  the  colonies  established  in 
America  by  the  mother  country.  Not  only  of  Africans,  but  also 

*  The  Spaniards  and  Portuguese  were  engaged  in  the  traffic  of  African  negroes 
and  slaves  before  the  discovery  of  America.  Bancroft's  History  of  the  United  States, 
vol.  1.  p.  178. ;  and  the  importation  of  slaves  into  the  Spanish  colonies  began  as 
early  as  1501.  Irving's  life  of  Columbus,  vol.  3.  App.  No.  6.  In  the  year  1562,  Sir 
John  Hawkins  was  engaged  in  transporting  and  selling  slaves  in  the  West  Indies ; 
and  in  the  years  1585  and  1588,  charters  were  granted  by  Queen  Elizabeth,  encoura 
ging  the  trade.  In  1620,  a  Dutch  vessel  carried  slaves  from  Africa  to  Virginia,  being 
the  first  importation  in  the  English  colonies.  And  in  1672,  the  African  company  was 
established  in  Great  Britian.  It  appears  by  the  records  of  the  Dutch  New  Netherlands, 
that  slaves  existed  in  their  settlements  as  early  as  1620.  Moulton's  History  of  New- 
York,  vol.  1.  p.  373. ;  2  Kent's  Com.  vol.  2.  p.  252. ;  and  in  Massachusetts,  between 
1630  and  1641.  ;  Ibid.;  and  Massachusetts  Collection,  vol.  4.  p.  194.  Bancroft's 
History,  vol.  1.  p.  187.  In  the  year  1663,  slaves  were  found  in  Maryland,  and  it  is 
supposed  they  were  introduced  there  as  early  as  1580.  The  Royal  African  Company, 
chartered  by  Queen  Elizabeth,  in  1585,  continued  to  supply  the  colonies  until  1709, 
when  the  trade  was  thrown  open.  A  more  extended  historical  view  of  the  subject 
may  be  considered  out  of  place  in  a  mere  practical  work.  Those  desirous  of  investi- 
ting  the  subject  further,  will  find  it  treated  in  the  Encyclopedia;  Americana,  tit.  Slaves. 
Kent's  Com.  vol.  2.  p.  252.  American  Jurist,  vol.  7.  p.  1.  Jefferson's  Notes  on  Vir 
ginia,  p.  252.  Burk's  History  of  Virginia,  2211.  Beverley's  History  of  Virginia,  251. 

With  respect  to  its  dissolution.  It  was  first  commenced  by  a  number  of  Quakers, 
in  1727,  who  liberated  their  slaves,  both  in  England  and  the  colonies  of  North  America. 
In  1751,  the  Quakers  made  a  formal  abolition  of  it  among  themselves.  In  1783,  the 
first  petition  was  presented  to  parliment  for  the  abolition  of  the  trade.  See  a  statement 
of  the  proceedings  in  the  Edinburgh  Encyclopedias.  The  subject  came  again  before  the 
house  of  commons,  in  1788,  being  brought  forward  by  Mr.  Pitt,  but  without  success, 

In  1792,  the  house  of  commons  passed  a  bill  for  the  abolition  of  the  slave  trade  in 


ORIGIN  AND  HISTORY  OF. 

of  Indians.  No  legislative  act  of  the  colonies  can  be  found  in  rela 
tion  to  it.  The  first  introduction  of  slaves  in  the  British  colonies 
was  accidental.  In  the  year  1616,  as  stated  by  Robertson  in  his 
history,  and  in  1620,  as  stated  by  Judge  Marshall  in  his  Life  of 
Washington,  a  Dutch  ship,  from  the  coast  of  Guinea,  sold  a  part 
of  her  cargo  of  negroes  to  the  planters  on  James  River.  This 
was  the  origin  of  the  slavery  of  the  blacks  in  the  British  colonies, 
and  it  is  thought  that  Indians,  at  this1  time,  were  held  in  slavery. 


DAVIS   (a  man  of  color)  v.  CURRY.      Fall  T.    1810.     2  Bibb's 

Rep.  238. 

In  an  action  for  freedom,  Davis  proved  that,  in  the  year  1789,  he  Slaves 
was  brought  as  a  slave  into  the  then  district,  now  state  of  Kentucky,  duced     in 
from  the  state  of  Delaware,  where  he  had  been  held  as  a  slave.  *e   ,  coi°" 

Hies  Dy  tnc 

There  being  no  proof  of  any  law  of  that  state  which  authorized  mother 
slavery,  he  moved  the  court  to  instruct  the  jury,  that  the  evidence, 
on  the  part  of  the  defendant,  was  not  sufficient  to  support  his  title. 

The  court  refused  the  instructions,  and  he  excepted. 

Per  Cur.  Boyle,  Ch.  J.     Slavery,  it  is  believed,  was  introduced 
into  the  colonies  by  the  regulation  of  the  mother  country,  of  which 


1795,  but  it  was  rejected  by  the  house  oflords.  And  in  1796,  Wilberforce  brought  in 
a  bill,  providing  that  the  slave  trade  should  be  abolished  forever,  after  the  1st  March, 
1797.  See  the  debates  in  parliament  of  that  year.  In  June,  1806,  on  motion  of  Mr. 
Fox,  a  bill  passed,  declaring  the  slave  trade  inconsistent  with  justice,  humanity,  and 
sound  policy ;  and  the  act  finally  abolishing  it,  passed  Feb.  5,  1807.  The  act,  making  it 
felony  to  be  engaged  in  the  slave  trade,  passed  the  British  parliament,  May  4,  1811, 
which  was  followed  by  the  act,  declaring  the  slave  trade  piracy,  in  1824. 

The  first  act  to  prohibit  the  slave  trade  was  passed  in  the  year  1794.  The  act  de 
clared  it  illegal  to  fit  out  any  vessel  for  the  purpose  of  carrying  on  the  trade.  This  was 
followed  by  the  act  of  1800,  declaring  it  unlawful  for  any  citizen  to  have  any  property 
in  any  vessel  employed  in  the  transportation  of  slaves  from  one  country  to  another. 
And  by  an  act,  passed  in  1807,  it  was  declared,  that  after  the  1st  of  January,  1808, 
it  should  not  be  lawful  to  bring  into  the  United  States,  or  the  territories  thereof,  from 
any  foreign  place,  any  negro,  mulatto,  or  person  of  color,  with  intent  to  hold  or  sell 
him  as  a  slave.  In  1820,  it  was  declared,  that,  if  any  citizen  of  the  United  States, 
belonging  to  the  company  of  any  foreign  vessel,  engaged  in  the  slave  trade,  or  any 
person  whatever  belonging  to  the  company  of  any  vessel,  owned,  in  whole  or  in  part, 
by,  or  navigated  for,  any  citizen  of  the  United  States,  should  land  on  any  foreign 
shore,  to  seize  any  negro  or  mulatto,  not  held  to  service  by  the  laws  of  either  of  the 
states  or  territories  of  the  United  States,  with  intent  to  make  him  a  slave,  or  should 
decoy,  or  forcibly  carry  off  such  negro,  or  mulatto,  or  receive  him  on  board  any  such 
vessel,  with  the  intent  aforesaid,  he  should  be  adjudged  a  pirate,  and  on  conviction, 
suffer  death. 
2 


tO  SLAVERY. 

the  courts  in  all  the  colonies  were  equally  bound  to  fake  notice,  in 
the  same  manner  as  the  courts  of  the  several  states  are  now  bound 
to  take  notice  of  any  regulation  of  the  general  government;  and 
what  the  courts  of  the  colonies  were  bound  to  take  notice,  judicially, 
we  must  still  be  presumed  to  know,  if  not  as  matter  of  law,  at  least 
as  matter  of  history.  We  must,  therefore,  presume  that  slavery  is 
tolerated  in  Delaware,  inasmuch  as  that  was  the  case  before  the  revo 
lution.  The  presumption  of  slavery,  which  attaches  to  the  plaintiff, 
is  not  destroyed  by  proof  of  his  removal  from  that  state. 

3 

HALL  v.  MULLIN.  June  T.  1821.  5  Har.  &  Johns.  Rep.  190. 
The  condi-  Benjamin  Hall,  by  his  will  manumitted  his  slave  Basil.  It 
slaves  does  appeared,  however,  that  Basil  was  upwards  of  45  years  of  age, 
notdepend  j  therefore  incapable  of  being  emancipated.  Afterwards, 

exclusively 

upon    the  Henry  L.   Hall,  the  son  of  the  testator,  sold  to  Basil  his  slave 
daYlaw.  U  Dolly  Mullin,  and  who  was  the  daughter  of  Basil,  who  then  eman 
cipated  her;  and  Henry  L.  Hall  bequeathed  property  to  her,  both 
real  and  personal.     The  defendant  entered  upon  this  property,  and 
this  action  of  trespass  was  brought. 

It  was  contended,  that  Basil,  not  being  manumitted,  could  not 
bestow  freedom  on  Dolly  Mullin,  and  that  she  was  not  capable  of 
taking  by  the  devise. 

Per  Cur.  Johnson,  J.,  It  has  been  contended,  on  the  part  of  the 
appellant,  that  the  condition  of  slaves  in  this  state  is  regulated  by 
the  civil  law;  and  that  as  by  that  law  slaves  could  purchase  property 
only  for  the  sole  use  and  benefit  of  their  masters,  that,  therefore, 
the  bill  of  sale  of  Dolly  to  Basil,  the  right  to  Dolly  passed  out  of 
Hall,  and  became  immediately  vested  in  the  then  owners  of  Basil, 
who  were  the  general  representatives  of  Benjamin  Hall.  On  the  part 
of  the  appellee  it  is  urged,  that  the  slaves  in  this  state  are  similar 
to  villeins  in  England,  when  villeinage  existed  in  that  country ;  and 
that,  as  in  that  country,  when  a  villein  purchased  property,  it  did 
not  pass  immediately  by  or  through  him  to  his  lord,  but  remained 
in  the  villein  until  the  lord  entered  on,  or  took  possession  of  the 
property;  any  disposition  made  of  such  property,  before  the  entry 
was  made,  or  possession  taken,  was  valid.  Cooper's  Justinian,  107. 
Litt.  §  177.* 

*  Before  the  conquest  there  were  villeins  in  Great  Britain.  1  Hume's  Hist,  of 
England,  p  181.  A  villein  might  he  by  prescription  or  confession  in  a  court  of  record. 
Co.  Litt.  117.  B.  The  last  confession  of  villeinage  is  in  19  Hen.  6.  (1441.)  Loft. 


WHO  MAY  BE  HELD  IN  SLAVERY.  11 

As  it  appears  by  the  civil  law,  the  property  never  abides  for 
one  instant  in  the  slave,  if  the  rights  of  Dolly  Mullin,  as  derived 
from  her  father  Basil,  depend  upon  that  law  ;  as  Basil  was  incapable 
to  manumit,  no  claim  on  her  part  can  rest  on  a  deed  of  his  execu 
tion.  But  should  her  rights  rest  on  the  feudal  law,  applicable  to 
villeinage,  then,  as  Basil  never  was  disturbed  in  the  possesssion  of 
Dolly  by  any  of  the  representatives  of  Benjamin  Hall,  or  any  other 
person,  before  or  after  the  deed  of  manumission  was  executed,  that 
deed  would  be  competent  to  set  her  free,  and,  of  course,  renders 
her  capable  to  take  the  land  devised.  But  the  condition  and  rights 
of  slaves  in  this  state  depend  exclusively,  neither  on  the  civil  or 
feudal  law,  but  may,  perhaps,  rest  in  part  on  both,  subject,  never 
theless,  to  such  changes  in  their  condition  and  capacity  to  con 
tract  as  the  laws  of  this  state  prescribe,  and  as  contained  in  vari 
ous  acts  of  our  state  legislature.  By  the  act  of  1715.  ch.  44.  §  11., 
it  was  prohibited  "  to  trade,  barter,  commerce,  or  any  way  deal  with 
any  slave,"  without  the  leave  of  the  master.  The  contract  between 
Henry  L.  Hall  and  Basil  under  this  act  was  void. 


WHO  MAY  BE  HELD  IN  SLAVERY. 

(A.)  OF  THE  AFRICAN. 

1. 

NEGRO  MARY  v.  THE  VESTRY  OF  WILLIAM  AND  MARY'S  PARISH. 
Oct.  T.  1796.     3  Har.  &  M'Hen.  501. 

Negroes 

Petition  for  freedom.     It  was  admitted  the  petitioner  was  de-  i.rnpo^Te^ 

IromMada- 

scended  from  negro   Mary,  imported   many  years  ago  into  this gascarmay 

be   held  as 


slaves. 


17. ;  and  there  were  no  villeins  in  gross  in  Great  Britian  in  1547,  and  the  last  case  on 
villeinage  is  to  be  found  in  Dyer,  266.  pi.  11.  It  was  virtually  abolished  by  the  statute 
12  Car.  2.  ch.  24.  These  were  some  of  the  principles  of  villeinage:  Villeinage  de 
scended  to  the  issue  when  the  father  and  mother  were  villeins.  Co.  Litt.  §  181.  But 
if  a  freeman  married  a  neif,  their  issue  was  free.  Co.  Litt.  123.  If  a  neif  had  a  bastard, 
he  was  free.  The  issue  followed  the  condition  of  the  father.  The  children  of  a  free 
woman  becoming  villeins,  and  of  a  neif  becoming  free,  where  a  freeman  married  a 
neif.  Co.  Litt.  §  185.  Villeins  were  either  regardent,  that  is,  annexed  to  the  land,  or 
else  they  were  in  gross,  and  annexed  to  the  person  of  the  lord,  and  transferrable  by 
deed  from  one  to  another,  the  same  as  any  chattel,  and  they  might  be  recovered  as  any 
other  chattel. 


12  SLAVERY. 

country  from  Madagascar;  and  the  question  was,  whether  she  was 
entitled  to  her  freedom. 

It  was  contended  that  Madagascar  was  not  a  place  from  which 
•  slaves  were  brought,  and  that  the  act  of  1715  related  only  to  slaves 
brought  in  the  usual  course  of  the  trade.  On  the  other  side,  it 
was  contended,  that  the  petty  provinces  of  Madagascar  make  war 
upon  each  other  for  slaves  and  plunder ;  and  they  carry  on  the 
slave  trade  with  Europeans. 

Per.  Cur.  Madagascar  being  a  country  where  the  slave  trade 
is  practiced,  and  this  being  a  country  where  it  is  tolerated,  it  is 
incumbent  on  the  petitioner  to  show  her  ancestor  wag  free  in  her 
own  country  to  entitle  her  to  freedom. 

2 

HUDGINS  v.  WRIGHT.    Nov.  T.  1806.    1  Hen.  &  Munf.  Rep.  139. 
Per  Cur.     The  slavery  of  the  African  negro  has  existed  from 

The     Afri 
cans,  or     the  time  of  bringing  them  into  the  colony.     In  many  of  the  states 

have°ebSeen  express  enactments  have  been  made  declaring  them  slaves ;  and 
slaves  from  «n  o^ers  they  are  slaves  by  custom.  See  the  act  of  assembly  of 
they  were  Maryland  of  1663,  commented  upon,  and  explained  in  Butler  v. 
to'thlcoio-  Craig,  2  Har.  &  M'Henry's  Rep.  214.,  and  Butler  v.  Boardman, 
bje%tatate  l  Har-  &  M'Hen.  371.;  2  Brevard's  Dig.  229.;  Prince's  Dig. 
or  by  cus-  445  .  Rev.  Code  of  Mississipi,  p.  369.  ;  1  Rev.  Code  of  Virginia, 
421. ;  Code  of  Louisiana,  art.  138. ;  2.  Litt.  &  Swi.  1149. 

(B)  OF  INDIANS. 

1. 

SEVILLE  v.    CHRETIEN.     Sept.  T.  1817.     5  Martin's  Louisiana 
Rep.  275.     STATE  v.  VAN  WAGGONER.     1  Hals.  Rep.  374. 

Under   the  .. 

French  go-  Mathews,  J.,  delivered  the  opinion  of  the  court.  The  plaintiff, 
hTTmiili-  an^  appellant,  sues,  in  forma  paupcris,  to  recover  his  liberty  and 
ana,  some >  judgment  having  been  given  against  him,  he  appealed.  The  evi- 
were  held  dence,  which  is  all  written  in  the  form  of  depositions  and  other 
and8  the7'  documents,  comes  up  with  the  record,  and  a  statement  of  the  case 
g™cehd°™agfis  made  by  the  counsel. 

not  acqui-  The  district  judge  having  admitted  all  the  testimony  offered,  we 
estabifsh-  &  deem  it  useless  to  enter  into  a  formal  investigation  and  decision  of 
Spanish^6  eacn  exception,  but  will  proceed  to  state  the  facts,  as  drawn  from 
govern-  the  evidence  which  was  properly  received.  A  summary  of  such 


WHO  MAY  BE  HELD  IN  SLAVERY.  13 

of  them  as  are  necessary  to  arrive  at  proper  legal  conclusions,  may 
be  laid  down  as  follows  :  In  the  year  1765  or  1766,  Duchene,  an 
Indian  trader,  brought  an  Indian  woman  to  Opelousas,  whom  he 
sold  to  Chretien,  the  father  of  the  defendant,  and  appellee.  She 
died  not  long  after,  leaving  a  female  child,  who  remained  peace 
ably  with  Chretien,  as  his  slave,  until  some  time  during  the  period 
in  which  the  Baron  de  Carondelet  was  governor  of  the  province 
of  Louisiana,  when  she  went  to  New- Orleans  with  her  master,  for 
the  purpose  of  claiming  her  freedom  before  the  proper  tribunal. 
It  appears  from  a  certificate  of  Peter  Pedesclaux,  a  notary,  that 
a  suit  was  commenced,  but  no  record  remains,  or  can  be  found,  of 
the  manner  in  which  it  terminated.  She  returned  with  Chretien, 
and  remained  with  him  as  his  slave  until  his  death,  which  happened 
after  the  United  States  took  possession  of  the  country  under  the 
treaty  made  with  the  French  government  in  the  year  1803.  She 
was  called  Agnes,  and  brought  forth  several  children  while  held  in  a 
state  of  slavery  by  Chretien,  of  whom  the  plaintiff,  and  appellant, 
is  heir.  After  the  death  of  the  ancestor  of  the  defendant,  and  the 
distribution  of  his  estate,  Agnes  and  some  of  her  children,  all  de 
scended  from  the  Indian  woman  sold  by  Duchene,  as  above 
stated,  brought  suit  in  the  parish  court  of  St.  Landry  against  their 
owners,  among  whom  was  the  present  defendant,  to  recover  their 
freedom.  From  a  judgment  by  default,  which  afterwards  became 
final,  an  appeal  was  taken  to  the  superior  court  of  the  late  terri 
tory  of  Orleans,  where  the  cause  was  tried  by  a  jury,  and  a  ver 
dict  rendered  in  favor  of  the  then  plaintiff,  and  appellee,  which 
was  set  aside  by  the  court,  on  account  of  some  misconduct  in  the 
jury,  and  a  new  trial  ordered.  The  case  remained  in  this  situation 
until  the  change  in  the  country,  from  a  territorial  to  a  state  go 
vernment,  and  was  then  transferred  with  others  to  the  fifth  district 
under  the  new  system.  As  the  person  who  became  judge  of  that 
district  had  been  engaged  as  counsel  in  the  cause,  it  was  transferred 
for  trial  to  the  second  district,  and  the  then  appellee,  who  was  the 
original  plaintiff,  not  appearing  to  prosecute  his  suit,  was  declared  by 
the  court  to  be  non-suited,  and  judgment  was  accordingly  entered. 
It  appears  from  the  depositions  of  a  number  of  witnesses,  (ad 
mitted  by  the  parties  to  have  been  correctly  taken,  and  to  be  pro 
per  evidence  in  the  cause,)  that  at  the  time  the  Spanish  government 
took  possession  of  the  country,  viz.  in  1769,  under  the  secret  trea 
ty  of  cession  made  between  France  and  Spain  in  1763,  many  of 
the  inhabitants  of  the  colony,  which  had  been  established  and  set- 


14  SLAVERY. 

tied  under  the  authority  of  the  French  government,  held  and  pos 
sessed  Indians  as  slaves,  and  it  seems  to  have  been  a  belief  pretty 
general  among  them  that  the  practice  of  holding  Indians  in  slavery 
.  was  tolerated  and  authorized  by  that  government.  The  fact  that 
a  considerable  number  of  Indians  and  their  descendants  were  held 
in  slavery  at  the  period  alluded  to,  is  clearly  proven.  These  be 
ing  all  the  important  facts  in  the  rase,  we  will  proceed  to  examine 
the  plaintiff's,  and  appellant's,  claim  to  freedom,  on  the  ground  taken 
by  his  counsel.  It  is  grounded  on  a  judgment  of  the  parish  court 
of  St.  Landry,  as  being  res  judicata,  by  a  competent  tribunal.  But 
if  it  be  determined  that  it  be  not  conclusively  supported  and  es 
tablished  by  the  judgment,  it  is  contended  that  the  plaintiff,  and 
appellant,  is  free  by  birth,  being  the  lineal  descendant  of  an  In 
dian  woman.  His  counsel  contends,  that  the  decision  of  the  cause 
must  be  according  to  the  rules  of  the  Spanish  system  of  laws. 
According  to  these  laws  it  is  clear,  that  since  the  famous  regula 
tions  of  Charles  V.,  made  about  the  middle  of  the  fifteenth  century, 
Indians  could  not  be  reduced  to  slavery ;  and  if  the  case  was  to  be 
decided  by  them,  he  would  certainly  be  entitled  to  his  freedom. 
But  on  the  other  side,  it  is  contended,  that  this  court  ought  to  be 
governed  in  the  determination  of  this  suit  by  the  municipal  laws 
and  usages  of  France,  by  which  her  American  colonies  were 
ruled.  On  this  previous  question  our  opinion  is  in  favor  of  the 
defendant,  and  appellee.  It  is  true  that  the  province  of  Louisiana 
was  ceded  by  France  to  Spain,  in  1763,  by  a  secret  treaty,  but  no 
effectual  possession  of  the  country  was  taken  until  the  arrival  of 
governor  O'Reilly  in  1769.  Now,  it  is  an  incontrovertible  princi 
ple  of  the  law  of  nations,  that  in  cases  of  the  cession  of  any 
part  of  the  dominions  of  one  sovereign  power  to  another,  the  in 
habitants  of  the  part  ceded  retain  their  ancient  municipal  regula 
tions,  until  they  are  abrogated  by  some  act  of  their  new  sovereign. 
In  relation  to  the  colony  of  Louisiana,  nothing  tending  to  repeal  its 
former  laws,  such  as  they  were  under  the  French  government,  took 
place  till  the  year  1769,  and  we  have  already  seen  that  the  Indian 
woman,  the  ancestor  of  the  plaintiff,  was  brought  into  the  country 
and  sold  as  a  slave  in  the  year  1765  or  1766. 

Slavery,  notwithstanding  all  that  may  have  been  said  and  writ 
ten  against  it,  as  being  unjust,  arbitrary,  and  contrary  to  the  laws 
of  human  nature,  we  find  in  history,  to  have  existed  from  the  ear 
liest  ages  of  the  world  down  to  the  present  day.  In  investigating  the 
rights  of  the  parties  now  before  the  court,  it  is  deemed  unneces- 


WHO  MAY  BE  HELD  IN  SLAVERY.  15 

sary  lo  inquire  into  the  different  means  by  which  one  part  of  the 
human  race  have,  in  all  ages,  become  the  bondsmen  of  the  other, 
such  as  captivity  being  the  offspring  of  those  already  enslaved,  &c. 
However,  we  are  of  opinion,  that  it  may  be  laid  down  as  a  legal 
axiom,  that  in  all  governments  in  which  the  municipal  regulations 
are  not  absolutely  opposed  to  slavery,  persons  already  reduced  to 
that  state  may  be  held  in  it;  and  we  also  assume  it,  as  a  first  princi- 
pl ',  tha   slavery  has  been  permitted  and  tolerated  in  all  the  colo 
nies  established  in  America  by  European   powers,  most  clearly 
as  relates   to  the  blacks  and  Africans,  and  also  in  relation  to  In 
dians  in  the  first  periods  of  conquest  and  colonization.     Taking 
this  principle  for  granted,  it  accounts,  in  some  measure,  for  the  ab 
sence  of  any  legislative  act  of  European  powers  for  the  introduc 
tion  of  slavery  into  their  American  dominions.     If  the  record  of 
any  such  act  exists  we  have  not  been  able  to  find  any  trace  of  it. 
It  is  true  that  Charles  the  Fifth,  in  the  first  part  of  the  sixteenth 
century,  granted  a  patent  to  one  of  his  Flemish  favorites,  for  the 
exclusive  right  of  importing  four  thousand  negroes  into  America, 
which  was  purchased  by  some  Genoese  merchants,  who  were  the 
first  who  brought  into  a  regular  form  the  commerce  for  slaves  be 
tween  Africa  arid  America.     A  few  years  before  a  small  number 
of  negroes  had  been  introduced  by  the  permission  of  Ferdinand, 
But  the  privilege  granted  by  the  emperor,  so  far  from  being  the 
first  introduction  of  slavery  into  the  new  world,  was  intended  as  a 
means  of  enabling  the  planters  to  dispense  with  the  slavery  of  the 
Indians,  who  had  been  reduced  to  a  state  of  bondage  by  their  Eu 
ropean  conquerors.     A  full  account  of  these  transactions  may  be 
seen  in  Robertson's  History  of  America.     On  turning  our  atten 
tion  to  the  first  settlement  of  the  British  colonies  in  America,  we 
find  that  the  introduction  of  negro  slaves  into  one  of  the  most  im 
portant,  was  accidental.     In  the  year  1616,  as  stated  by  Robert 
son,  and   1620,  by  Judge  Marshall,  in  his  life  of  Washington,  a 
Dutch  ship  from  the  coast  of  Guinea  sold  a  part  of  her  cargo 
of  negroes  to  the  planters  on  James  river.     This  is  the  first  origin 
of  the  slavery  of  the  blacks  in  the  British  American  provinces. 
About  twenty  years  after,  slaves  were  introduced  into  New  Eng 
land.  All  this  took  place  without  any  previous  legislative  act  on  the 
subject;  and  it  is  believed  that  Indians  were  at  the  same  time,  and 
before,  held  in  bondage.     The  absence  of  any  act,  or  instrument 
of  government,  under  which  their  slavery  originated,  is  not  a  mat 
ter  of  greater  surprise  than  that  there  should  be  none  found  au- 


16  SLAVERY. 

thorizing  the  slavery  of  the  blacks.     The  first  act  of  the  legisla 
ture  of  the  province  of  Virginia  on  the  subject  of  the  slavery  of 
the  Indians,  was  passed  in  1670,  and   one  of  its  provisions,  as  we 
are  informed  by  Judge  Tucker,  prohibits  free  or  manumitted  In 
dians  from  purchasing  Christian  servants.     The  words  free  or  man 
umitted  are  useless  and  absurd,  if  there  did  not  exist  Indians  in 
slavery,  and  Indians  who  had  been  slaves,  and  had  been  manumit 
ted  before  and  at  the  time  this  act  was  passed.      Indeed,  from  the 
history  and  legislative  proceedings  of  the  British  colonies,  both  in 
the  West  India  islands  and  in  North  America,  it  clearly  appears, 
that  in  most,  if  not  in  all  of  them,  the  slavery  of  the  Indians  was 
tolerated  by  government  in  the  early  period  of  their  settlement, 
without  any  specific  legislation  on  that  subject.     The  French  go 
vernment  was  later  in  establishing  colonies  in  America  than  the 
British  and  Spanish.     In  our  researches  on  the  subject  under  con 
sideration,  we  have  not  been  able  to  discover  any  legislative  act  of 
it,  by  which  the  colonies  were  authorized  to  hold  Indians  in  bond 
age,  but  that  it  was  customary  to  purchase  and  hold  some  classes 
of  them  in  slavery,  cannot  be  doubted.     This  cannot  have  been 
without  the  permission,  or  at  least  the  toleration  of  government. 
Moreau  de  St.    Mery,  speaking  of  the  black  population  of  St. 
Domingo,  observes,  that  among  it  are  the  descendants  of  some  In 
dians  from  Guiana,  Louisiana,  &c.,  whom  government  and  indivi 
duals,  in  violation  of  the  law  of  nature,  deemed  it  profitable  to  re 
duce  to  slavery.      1  Hist.  St.  Dom.  67.     In  the  beginning  of  the 
eighteenth  century,  he  adds,  there  were  upwards  of  three  hundred 
Indian  slaves,  in  the  French  part  of  St.  Domingo.     In  1730,  the 
governor  of  Louisiana  sent  three  hundred  of  the  Natchez  tribe  to 
be  sold.      Several    arrived   after  that  period  from   Canada  and 
Louisiana.    Here  we  have  historical  facts  establishing,  beyond  con 
tradiction,  the  holding  of  Indians  as  slaves,  in  one  of  the  French 
colonies,  many  of  whom  were  transported  from  the  very  colony 
in  which  the  ancestor  of  the  plaintiff,  and  appellant,  were  held  in 
bondage.     Were  it  necessary  to  prove  that  they  were  legally  held 
so,  the  evidence  of  it  would  be  found  in  their  being  taxed  as  slaves, 
(2  St.  Domingo  Laws,  541 .,)  a  circumstance  which  creates,  at  least, 
a  very  violent  presumption  that  the  municipal  regulations  of  the 
French    colonies   did    not   prohibit   the   slavery   of  'l.e   Indians. 
This  appears  to  have  been  the  opinion  of  the   Spanish  govern 
ment,  which  we  have  seen  succeeded  to  the  French  in  Louisiana. 
Governor  O'Reilly,  in  1769,  on  taking  possession  of  the  colony, 


WHO  MAY  BE  HELD  IN  SLAVERY.  17 

discovered  that  a  considerable  number  of  Indians  were  held  in 
slavery  by  the  French  colonists.  This  he  declared,  by  a  procla 
mation,  to  be  contrary  to  the  wise  and  pious  laws  of  Spain  :  but 
by  the  same  instrument,  he  confirmed  the  inhabitants  in  the  pos 
session  of  such  Indian  slaves,  until  the  pleasure  of  the  king,  in 
this  respect,  could  be  known.  Here  is  then  a  recognition  of  the 
right  of  the  possessors,  to  hold  their  Indians  slaves,  until  the  legis 
lative  will  of  the  monarch  should  deprive  them  of  it.  This  never 
did  happen.  In  conformity  with  this  opinion,  is  a  decree  of  the 
Baron  de  Carondelet,  twenty-five  years  after,  in  1794,  by  which  he 
orders  two  Indians,  Alexis  and  David,  to  return  to,  and  abide  with 
their  owners,  uutil  the  royal  will  was  expressed  to  the  contrary. 
The  inhabitants  of  the  colony  of  Louisiana,  while  under  the  go 
vernment  and  dominion  of  France,  held  Indians  in  slavery.  The 
Spanish  government,  under  which  they  passed,  recognized  their 
right  to  hold  them,  until  it  should  be  altered  by  a  declaration  of  the 
king's  will.  It  never  was  declared.  The  colony,  without  any 
change  in  the  condition  of  the  original  population,  is  receded  to 
the  French  nation,  and  by  it  transferred  to  the  United  Stales,  under 
a  treaty  securing  to  its  inhabitants  their  rights  to  property,  as  they 
stood  under  the  former  government.  Throughout  these  political 
changes,  the  ancestor  of  the  defendant,  and  appellee,  remained  un 
disturbed  in  his  possession  of  the  plaintiff,  and  appellant's  mother, 
as  his  slave,  and  of  him  since  his  birth.  It  is  true  that,  during  the 
government  of  the  Baron  de  Carondelet,  the  plaintiff's  mother,  as 
has  been  stated,  made  an  attempt  to  obtain  her  freedom.  What 
proceedings  took  place  before  that  governor,  whether  any,  or  what 
judgment  was  rendered,  cannot  now  be  ascertained.  The  only 
thing  clear  is,  that  she  returned  with  the  defendant's  father  from 
New-Orleans,  and  remained  with  him  as  his  slave  until  his  death. 
This  certainly  raises  a  presumption,  that  the  suit  terminated  in  a 
manner  unfavorable  to  her  claim.  If  this  is  to  have  any  weight 
on  the  determination  of  the  present  case,  it  must  certainly  be  placed 
against  the  plaintiff.  Upon  the  whole,  we  are  of  opinion,  that 
neither  from  a  view  of  political  changes  in  the  country,  nor  a  fair 
examination  of  the  subject,  is  the  plaintiff,  and  appellant,  entitled 
to  his  freedom. 
3 


18  SLAVERY. 

2. 

ULZIRE  ET  AL.  v.  POEY  FARRE.    May  T.   1824.       14  Martin's 

Rep.  504. 

The    issue      Per  Cur.     Porter,  J.     This  is  an  action  in  which  the  plaintiffs, 

of  an  Indian  »  '_*.•*•«•  t  •       A   • 

woman  is  who  aver  that  they  are  descended  irom  Indians,  now  claim  their 
freedom.  The  issue  joined  is  liberi  vel  non.  The  cause  was  sub 
mitted  to  a  jury,  on  special  facts,  who  have  found  that  the  petition 
ers  are  descended  from  an  Indian  woman  of  the  Chickasaw  tribe; 
and  that  the  defendant  has  shown  no  title  to  hold  them  as  slaves. 
On  this  verdict,  the  duty  of  the  court  is  very  simple  :  if  the  defend 
ant  hold  the  plaintiffs  in  slavery  without  any  title,  he  does  so  ille 
gally,  and  they  must  be  set  free.  Judgment  affirmed, 

3. 

BUTT  v.  RACHEL  ET  AL.  Feb.  T.  1814.  4  Munf.  Rep.  209.  S. 
P.  HUDGINS  v.  WRIGHTS,  1  Hen.  &  Munf.  134.  ;  PALLAS 
ET  AL.  v.  HILL  ET  AL.,  2  Hen.  &  Munf.  149.  ;  1  Tuck. 
Blk.,  part  2.  p.  47. 

A  native  Suit  for  freedom.  The  plaintiffs  claimed  their  freedom  as  being 
descendants  of  Paupouse,  a  native  American  female  Indian,  who 
Was  brou&nt  into  Virginia  about  the  year  1747;  and  moved  the 


since  1691  court  to  instruct  the  jury,  that  no  native  American  Indian  brought 

could     not  •    ,     TT.      ....  ,  , 

lawfully  be  mto  Virginia  since  the  year  1691,  could,  under  any  circumstances, 


very  Titho'  be  ma^e  a  slave  '  wnicn  instruction  the  court  gave.     The  defend- 
the  Indian  ant  claimed  to  hold  the  slaves  upon  the  ground,  that  though  they 

was  a  slave  J 

inthecoun-  were  the  descendants  of  Paupouse,  a  native  American  Indian,  yet 
PauPouse  was  a  slave,  and  held  as  such  in  the  Island  of  Jamaica, 
by  the  wife  of  a  Mr.  Ivey,  and  brought  by  the  said  Ivey  into  Vir 
ginia,  as  a  slave,  about  the  year  1747.  And  the  defendant  moved 
the  court  to  instruct  the  jury  that  a  native  American  Indian,  held 
in  Jamaica  as  a  slave,  under  the  laws  of  that  island,  and  imported 
into  Virginia  by  her  proprietor  in  the  year  1746,  or  1747,  might 
lawfully  be  held  as  a  slave  in  Virginia,  notwithstanding  such  person 
was  a  native  American  Indian.  But  the  court  refused  to  give  the 
instructions.  Verdict  and  judgment  for  plaintiffs,  from  which  the 
defendants  appealed.  And  on  a  subsequent  day  the  court  affirmed 
the  judgment. 


V 

WHO  MAY  BE  HELD  IN  SLAVERY.  19 

4, 

HUDGINS   v.   WRIGHTS,  Nov.  T.  1806.   1  Hen.  &  Munf.  134. 
PALLAS  ET  AL.  v.  HILL  ET  AL.,  2  Hen.  &  Munf.  149. 

The  court  held,  that  Indians  had  always  been  considered  as  No   native 
free  persons,  in  fact  and  in  right.     In  the  year   1679,  the  Virginia  could  have 
legislature  passed    an   act,  declaring    Indian  prisoners  taken  in 
war  to  be  slaves  ;  and  in  the  year  1682,  another  act  was  passed,  Y 
declaring  that  Indians  sold  to  us  by  neighboring  Indians,   and 
others     trading    with    us,   should   be    slaves.      But  in  the  year 
1691  these  acts  were  repealed,  and  no  Indian  could  be  made  a 
slave  under  the  laws  of  Virginia  since  the  latter  period.     And  the 
General  Court,  in  April  T.  1777,  decided  that  all  American  In 
dians  brought  into  this  country  since  the  year   1705,  and  their 
descendants  in  the  maternal  line,  are  free.     See  JENKINS  v.  TOM. 
1   Wash.    Rep.    123.       COLEMAN  v.  DICK.    £   PAT.,    1  Wash. 
Rep.  239. 

5. 

HUDGINS  v.  WRIGHTS,  Nov.   T.  1806.    1   Hen.   &  Munf.    134. 
HOOK  v.  NANNY  PAGEE,  2  Munf.  379. 

Held  by  the  court,  that  the  presumption  was,  that  all  Indians  The 
introduced  into  the  state,  at  any  time,  were  prima  facie  presumed  sumption 
to   be   free,  or   that,   if  the  date   of  their   introduction   did  not  vor. 
appear,  the  prima  facie  presumption  was,  that  they  were  Ameri 
can  Indians,  and  brought  in  after  the  act  of  1705,  and  therefore 
free. 

6. 
HUDGINS  v.  WRIGHTS,  Nov.  T.  1806.     1  Hen.  &  Munf.  134. 

Held  by  the  court,  that  if  a  female  ancestor  of  a  person  assert-  Which  may 
ing  a  right  to   freedom,  whose  genealogy  is  traced   back  to  such  £fd>  rebut" 
ancestor  through  females  only,  he  proved  to  have  been  an  Indian, 
it  seems  incumbent  on  those  who  claim  such  person  as  a  slave,  to 
show  that  such  ancestor,   or  some  female  from  whom  she  de 
scended,  was  brought  into  Virginia  between  the  years  1679  and 
1691,  and  under  circumstances  which,  according  to  the  laws  then 
in  force,  created  a  right  to  hold  her  in  slavery. 


20 


SLAVERY. 


by  facts 
cnmstan- 


7. 

GREGORY  v.  BOUGH,  March  T.  1831.     2  Leigh's  Rep.  686. 
And  which      Per  Green,  J.      I  cannot  for  a  moment  doubt  the  propriety  of 
u<mUmimiy  the  former  decisions  of  this  court,  and   of  the  instruction  under 
again     be  consideration,  that  proof  that  a  party  is  descended  in  the   female 

supported 

line  from  an  Indian  woman,  and  especially  a  native  •American, 
without  any  thing  more,  \sprimafacie  proof  of  his  right  to  free- 
dom  —  liable  to  be  repelled  by  proof  that  his  race  has  been  imme- 
moriably  held  in  slavery  ;  which  may  be  in  turn  rebutted  by  the 
consideration  of  the  ignorance  and  the  helpless  condition  of  per 
sons  in  that  situation,  aided  by  other  circumstances,  such  as  that 
many  such  were  bound  by  law  to  a  service  equivalent,  in  all  re 
spects,  to  a  state  of  temporary  slavery,  until  they  attained  the  age 
of  thirty-one  years  ;  and  in  many  cases,  (according  to  circum 
stances  existing  almost  in  every  case,)  for  an  uncertain  term 
beyond  that  age. 


Indians 


JerseGW 


8. 
STATE  v.  VAN  WAGGONER.    April  T.  1797.     1  Halst.  Rep.  374. 

On  a  habeas  corpus  for  the  body  of  Rose,  an  Indian  woman, 
claimed  by  the  defendant  as  a  slave,  it  appeared  that  the  mother 
°^  ^ose  nac^  been  purchased  as  a  slave,  and  had  been  held  as  such 
for  55  years.  It  was  contended,  that  as  the  mother  and  daughter 
were  confessedly  Indians,  it  furnished  prima  facie  evidence,  at  least, 
that  they  were  free.  On  the  other  hand,  it  was  contended,  that 
the  acts  of  the  legislature  of  New  Jersey,  recognised  Indians  as 
slaves.  March  11,  1713  —  14.  Allison,  p.  18.  And  the  act  of  May 
10,  1768  ;  and  also  the  act  of  1769.  And  the  same  principles  pre 
vailed  in  Pennsylvania.  1  Dall.  Rep.  167. 

Per  Cur.  Kinsey,  Ch.  J.  The  habeas  corpus  in  this  case 
seems  to  have  been  sued  out  under  the  supposition  that  an  Indian 
could  not  be  a  slave  under  our  laws.  But  this  idea  is  contradicted 
by  various  acts  of  assembly,  some  of  which  have  been  cited  on  the 
argument  ;  and,  indeed,  it  cannot  be  urged  with  any  show  of  reason. 
They  have  been  so  long  recognised  as  slaves  in  our  law,  that  it 
would  be  as  great  a  violation  of  the  rights  of  property  to  establish 
a  contrary  doctrine  at  the  present  day,  as  it  would  in  the  case  of 
Africans  ;  and  as  useless  to  investigate  the  manner  in  which  they 
originally  lost  their  freedom. 


WHO  MAY  BE  HELD  IN  SLAVERY.  21 

(  C.  )  OF  WHITE  PERSONS. 

1. 

BUTLER  v.  BOARMAN,  Sept.  T.  1770.    1   Har.    &   M'Hen.  371. 

The  petitioners,  William  and  Mary  Butler,  claimed  their  free-  A  white 
dom,  as  being  descended  from  a  free  white  woman,  called  Eleanor, 


or  Irish  Nell,  who  was  brought  into  Maryland  by  Lord  Baltimore,  with  a  slave 
as  a  domestic  servant,  before  the  year  1681.     They  were  claimed  deemed 
as  slaves  by  reason  of  the  marriage  of  their  ancestor,  Irish  Nell,  tJfJu^h  the 


with  a  negro  slave,  under  the  act  of  1663,  ch.  30.  It  was  in  act  subject- 
proof,  that  she  was  married  to  the  negro  slave  in  the  year  1681,  to  slavery 
and  in  the  same  year,  but  afterwards,  the  act  was  repealed.  The  Jj  ^medi 
co  urt  adjudged  the  petitioners  free  ;  and  the  defendant  appealed  Jj^y 
to  this  court,  where,  after  argument,  the  judgment  was  reversed  ;  riage. 
the  court  holding,  that  the  issue  born  after  the  repealing  law  were 
slaves,  the  marriage  taking  place  before  the  repeal  ;  or,  in  other 
words,  where  a  white  woman  intermarried  with  a  slave,  the  issue 
are  slaves,  though  the  act  subjecting  such  issue  to  slavery,  was 
repealed,  if  the  marriage  took  place  before  the  repeal  of  the  act. 


BUTLER  v.  CRAIG.    Oct.  T.  1787.    2  Har.  &  M'Hen.,  Rep.  214. 
And  see  BUTLER  v.  BOARMAN,  1  Har.  &  M'Hen.  Rep.  374. 

Petition  for  freedom  by  Mary  Butler,  claiming  her  freedom  as  Before  the 
a  descendant  of  Irish  Nell,  a  free  white  woman.  After  proof  of  &?*  white 
the  descent  of  the  petitioner  from  Irish  Nell,  the  defendant  offered  ^'J^11/™ 
to  read  the  evidence  taken  in  the  former  cause  of  Butler  v.  Boar-  slavery  un 
man,  to  prove  that  Irish  Nell  was  married  to  a  negro  slave,  during  of  1663,  for 


the  existence  of  the  act  of  1663  ;  and  to  prove  that  she  was  a  slave, 
and  all  the  issue  and  descendants    from  the  said  marriage  have  kins 
been  constantly  held  and  considered  as  slaves,  and  that  the  peti-  and  her  i 
tioner,  one  of  the  descendants,  had  always  been  held  and  considered 


as  a  slave  by  the  defendant.     To  which  evidence  the  petitioner's  tion  of  the 
counsel  objected,  alleging,  that  a  record  of  the  conviction  of  the  must  be 
said  Irish  Nell,  for  having  intermarried  with  the  slave,  should  be  Proved 
produced,  and  that  without  such  conviction,  neither  the  said  Irish 
Nell,  nor  any  of  her  descendants  could  legally  be  slaves. 

The  court  was  of  opinion,  that  without  a  conviction  in  a  court 
of  record  of  Irish  Nell's  having  intermarried  with  a  slave,  she  could 
not  become  a  slave,  nor  could  her  issue  become  slaves  by  virtue 


22  SLAVERY. 

of  such  marriage  ;  and  that  no  presumption  of  conviction  could 
arise  from  the  petitioner  and  her  ancestors  having  been  held  in 
slavery. 

The  defendant  appealed,  and  the  court  confirmed  the  judgment. 

3. 

HOOK  v.   NANNY  PAGEE,  AND  HER  CHILDREN.  June,  T.  1811. 
2  Munf.  Rep.  379. 

If  from  in-      Suit  for  freedom.     The  Jury  found,  among  other  things,  that 
appears  to  Nanny  Pagee  was  a  white  woman,  in  the  following  words  :   "  We 


tne  JU1T  a^so  ^n(^»  h°m  inspection,  that  the  said  Nanny  Pagee 
is  a  white  js  a  white  woman  ;  We  of  the  jury  therefore  find  that  the  plaintiffs 

person,  J      J 

they  ought  are  free  persons,  and  not  slaves." 

he  is  a  fr'e.e  ^  was  contended  that  the  word  therefore,  compels  the  court  to 
man,  un-  inqUire  whether  the  premises  were  correct  from  which  the  jury 
proved  that  drew  their  conclusion.  On  the  other  hand,  it  was  said,  that  the 
ded  in  the  verdict  closed  all  other  questions,  by  finding  that  the  plaintiffs  were 
uITeefrom  a  white  Persons-  HUDGINS  v.  WRIGHTS,  1  Hen.  &  Munf.  134. 
/slave.  Per  Cur.  Brooke,  J.  It  is  said,  that  the  distinguishing  charac 

teristics  of  the  different  species  of  the  human  race  are  so  visibly 
marked,  that  those  species  may  be  readily  discriminated  from  each 
other  by  inspection,  and  that  in  the  case  of  a  person  visibly  ap 
pearing  to  be  of  a  slave  race,  it  is  incumbent  on  him  to  make  out 
his  freedom  ;  but  in  the  case  of  a  person  visibly  appearing  to  be 
of  a  free  race,  it  is  required  of  his  adversary  to  show  he  is  a 
slave.  Applying  the  doctrine  to  the  case,  I  have  no  doubt  the 
judgment  of  the  district  court  was  correct  upon  the  verdict  of 
the  jury  ;  putting  out  of  the  case  every  thing  in  the  verdict, 
except  the  finding  of  the  jury,  that  from  inspection,  the  said  plain 
tiff,  Nanny  Pagee,  is  a  white  woman  ;  and  this  is  quite  sufficient,  it 
being  incumbent  on  the  defendant  to  have  proved,  if  he  could,  that 
the  plaintiff  was  descended  in  the  maternal  Jine  from  a  slave. 
Having  not  proved  it,  she  and  her  children  must  be  considered 
as  free. 


OF  THE  INCREASE  OF  SLAVES.  23 

(IV.)  OF  THE  INCREASE  OF  SLAVES. 

(A.)    To  WHOM  THE  INCREASE  BELONGS* 
1. 

ERWIN  &  OTHERS  v.  KILPATRICK  AND  OTHERS.  June  T.  1825. 
3  Hawk's  North  Carolina  Rep.  456.;  GLASGOW  v.  FLOWERS, 
1  Haywood's  Rep.  233.;  TIMMS  v.  POTTER,  Martin's  N.  C. 
Rep.  22.;  JONES  v.  JONES,  C.  &  N.  310.;  PRESTON  v. 
M>GAUGHEY,  C.  C.  U.  S.,  Cook's  Rep.  113. 

This  was  a  petition  filed  in  the  court  below,  against  the  de-  The   in- 
fendants,  as  executors  of  the  last  will  of  William  Erwin,  deceased,  ^vesbom 
The  Petition  stated,  that  the  petitioners  were  the  daughters  of  the  ^"^^ 
testator,  who  having  made   a  last  will  and  testament,  died,   and  gatee   for 
the  defendants  proved  the  will,  and  assumed  the  execution  thereof,  to^e  nfce- 
That  among  other  bequests,  the  will  contained  the  following  :  "  ^  jjjfjjjjffg 

my  wife  cease  to  be  my  widow  by  marriage,  it  is  my  will   that  the     abso 
lute    own- 
she  shall  have  her  bed,  and  her  choice  of  one  horse,   and  a  fifth  er. 

part  of  the  household  and  kitchen  furniture,  but  have  no  further 
claim  to  the  use  of  my  negroes.  In  this  case,  or  at  her  death, 
it  is  my  will  that  my  son  Joseph  shall  have  my  negro  named 
Isaac,  and  my  son  John  shall  have  Jack,  and  Lyd  his  wife,  re 
quiring  of  him  some  care  of,  and  attention  to,  such  of  his  sisters 
as  may  remain  unmarried."  The  petition  further  stated,  that 
after  the  death  of  the  testator,  and  during  the  life  of  his  widow, 
the  slave  Lyd  had  issue  two  children,  Alfred  and  Verdy,  after 
which  the  widow  died ;  that  the  testator's  son  Joseph  is  dead 
without  issue,  and  that  John  Erwin  claims  the  negroes.  The 
petition  then  insists,  that  the  negroes  Alfred  and  Verdy  were  un 
disposed  of  by  the  will,  and  prays  that  the  defendants  may  be 
compelled  to  make  distribution  among  the  petitioners  and  John 
Erwin,  the  surving  children  of  the  testator. 

John  Erwin,  the  son,  being  also  made  a  defendant,  answered, 
claiming  the  negroes  Alfred  and  Verdy,  (the  children  of  Lyd,  born 
during  the  life  estate  of  his  mother,)  because  he  was  by  the  will 
entitled  to  the  mother,  Lyd,  after  the  death  of  the  widow. 

The  petition  was  dismissed,  and  the  petitioners  appealed. 

Per  Cur.  Taylor,  Ch.  J.  Ever  since  the  case  of  Timms  v. 
Potter,  the  question  arising  in  this  case  has  been  considered  at 


24  SLAVERY. 

rest  ;  and  it  would  be  attended  with  the  most  mischievous  conse 
quences  again  to  draw  it  into  controversy*     It  has  now  become  a. 
fixed  rule  of  property,  that  the  increase  of  slaves  born  during  the 
life  of  the  legatee  for  life,  belong  to  the  ulterior  legatee,  who  is 
the  absolute  owner.     The  judgment  must  be  affirmed. 

2. 

PRESTON  v.  M'GAUGHEY.  June  T.  1812.     1  Cook's  Rep.  115. 
CRAIG  v.  ESTES,  1  Cook's  Rep.  381. 

A  contrary  The  court  held,  that  it  had  been  too  long  settled  to  be  recalled, 
increase  ^at  if  there  be  an  estate  for  life  in  a  negro  woman,  and  pending 
lw?h  stock.  the  estate  she  has  children>  they  wil1  go  to  the  remainder-man. 

Per  Overton,  J.  From  the  cases  it  will  appear,  that  if  a  negro 
woman  is  devised  to  one  for  life,  with  remainder  to  another,  and 
during  the  life  estate  the  woman  have  children,  they  belong  not  to 
him  who  has  the  life  estate,  but  to  the  remainder-man.  The  in 
crease  must  go  to  the  person  who  has  the  general  property,  and 
not  to  the  owner  of  the  particular  interest.  But  the  rule  does  not 
apply  "to  live  stock."  Murphy  v.  Rigg,  1  Marsh.  532.  ;  Miller 
v.  M'Clelland,  7  Munroe's  Rep.  232. 

3. 

TIMM'S  v.  POTTER,  1  Haywood's  Rep.  234.  ;  CRAIG  v.  EUSTIS, 
1  Cook'sRep.  381.  ;  PRESTON  V.M'GAUGHEY,  Cook's  Rep.  113. 

fbliowsSSthe  Held  by  the  COUrt)  that  the  issue  of  a  female  slave  follows  the 
condition  condition  of  the  mother,  and  belongs  to  the  remainder-man,  and 
ofAe  mo-  not  to  th 


4. 
NED  ET.  AL.  v.  BEAL.     SPRING  T.  1811.     2  Bibb,  298. 

le      The  testator  devised  that  his  negro  slave  Jude  should  be  free 
tucky.        in  1804.     After  the  death  of  the  testator,  and  before  the  year 
1804,  the  plaintiffs  were  born  of  Jude,  who  brought  this  suit  for 
their  freedom   against  Beal,  who  claimed  them  as  slaves.     The 
circuit  court  gave  judgment  for  defendant. 

Per  Cur.  Boyle,  Ch.  J.  The  general  rule  is,  that  the  children 
follow  the  condition  of  the  mother,  at  the  time  of  their  birth,  ac 
cording  to  the  maxim  partus  sequitur  ventrem.  Hence,  it  naturally 
follows,  if  Jude,  the  mother  of  the  appellants,  were  at  the  time  of 
their  birth  a  slave,  that  they  are  also  slaves.  Judgment  affirmed. 


Or  THE  INCREASE  OF  SLAVES.  25 

5. 

v.  DOBSON,  October  T.    1749.     1    Har.   &    M'Henry, 
160.  ;  SOMMERVILLE    v.    JOHNSON,   1    Har.    &   M'Henry, 
348.  ;  HAMILTON    v.  CRAIG,  6  Har.  &  Johns.    Rep.  18. 
Replevin  for  Lewis  and  Sampson,  two  negro  boys,  and  Kate  A    legatee 
and   Phoebe.     The  jury  found,  that  Benjamin  Parrot,  by  his  late  ^vefeisof 
will  and  testament,  devised  as  follows  :    "  I  leave  unto  my  wife  entitled  to 
four  negroes  during   her  natural  life  ;  that  is  to  say,  Kate,  Alice,  bom  du- 
Moreah,  and  Rose,  and  after  her  death  to  be  divided  between  my  J 
seven  children,  Benjamin,  Mary,  Hannah,  Eliza,  Jane,  Rebecca 
and   William  Parrot."     The   defendant,   Hannah,  is  one   of  the 
children  mentioned  in  the  will,  and  took  and  detained  the  negroes 
after  the  death  of  the  testator's  wife,  and  the  plaintiff  intermarried 
with  the  widow  ;  that  the  negroes  mentioned  in  the  declaration 
were  born  after  the  death  of  the  testator,  of  the  bodies  of  the 
slaves  mentioned  in  the  will,  and  while  they  were  in  the  posses 
sion  of  the  widow  of  the  testator  and  her  husband.     The  provin 
cial   court  gave  judgment  for  the  defendant,  and   the    plaintiff 
appealed  to  this  court  where  the  judgment  was  reversed.     And, 
see  Sommerville  v.  Johnson,  Feb.  T.   1770,  1   Har.   &  M'Hen 
ry,  348.,   and  Mr.  Dulany's   opinion   appended  to  the  case.     In 
speaking   of    the    above   case,    Mr.    Dulany  says,  that  the  bar 
of  Maryland  have  considered  the  case   as  settling  the  law,   that 
purchases  have  been  made,  and  much   property   is  held  under 
the  decision.      And  that  the   two  principal  reasons  which   go 
verned   the  court  were,  1st.  That  the   issue  ought  to  go  to  the 
person  to   whom  the  use  was  limited ;    otherwise,  having  no  in 
terest  worth  regarding,  he  might  not  take  care  of  the  issue,  and 
that  it  would  only  be  a  reasonable  satisfaction  for  the  expenses  of 
maintenance.     2d<     That  when  the  use  is  given,  a  bounty  at  all 
events  is  intended  ;  but  instead  of  a  benefit,  if  thj  issue  should  go 
over,  there  might  be  a  loss**     And  in  Bohen  v.  Headly,  7  Har.  & 
Johns.  Rep.  257.,  Jlrch&r,  J.,  held,  that  the  issue  of  slaves  born 
during  the  existence  of  a  tenancy  for  life  belong  to  the  tenant. 

*  And  see  Mr.  Dulany's  opinion,  1  Har.  &  M'Henry,  557.,  where  lie  held,  that 
where  A.  was  possessed  of  a  negro  woman  slave,  who  in  the  life  time  of  A  had 
issue,  which  issue  also  had  issue  after  the  death  of  A.,  can  the  representatives  of  A. 
claim  a  share  in  the  issue  of  the  children  born  after  the  death  of  A.?  I  think  the 
representatives  of  A.  might  claim  the  issue. 

4 


26  SLAVERY. 

6. 
HAMILTON  v.  CRAGG.  June  T.  1823.  6  Har.  &  Johns.  Rep.  16  ; 

S.  P.  SCOTT  v.  DOBSON,  1  Har.  &  M'Hen.  160.  ;  SOMMER- 
VILLE  v.  JOHNSON,  ibid.  p.  352.  ;  STANDIFORD  v.  AMOS, 
1  Har.  &  Johns.  Rep.  526. 

Where     a       The  court,  Buchanan,  J.,  held,  that  were  a  negro  woman  was 
negro  wo-  devised  to  one  during  the  life  of  the  devisee,  and  then  to  be  free, 

man     be 

queathed  the  children  born  during  the  life  of  the  devisee  would  be  slaves. 
the  life  of  They  follow  the  condition  of  the  mother  at  the  time  of  the  birth, 
'  who»  thougn  to  become  free  herself,  on  the  death  of  the  legatee, 


during  his  was,  during  her  life  time,  not  in  the  capacity  of  a  servant,  but  in 
ter'  the  the  state  and  condition  of  a  slave  ;*  she  had  no  civil  rights,  and 
testator  *  *  cou^  have  pursued  no  legal  remedy  against  her  mistress  on  any 
ilssue  account  ;  she  could  have  made  no  will,  and  was  incapable  of  tak- 


long  to  the  ing  by  descent  or  by  purchase,  the  product  of  her  labor  belonged 
thTground  to  her  mistress  ;  she  could  neither  plead  or  be  impleaded,  and  was 


subject  to  all  the  disabilities  and  incapacities  incident  to  a  state  of 
considered  slavery.  She  was  a  mere  chattel,  the  property  of  her  mistress, 
accessary,  who  could  have  sold  or  transferred  her  at  pleasure.  In  this  state 
of  the  use!  °^  slavery  the  petitioner  was  born,  and  though  on  the  death  of  the 
and  to  go  legatee,  the  mother  became  free,  yet  she  may  be  said  then  first  to 
son  to  have  been  "  born  into  civil  life,"  and  her  new-born  capacities,  in- 
is  lim-  cident  to  her  new  state  of  being,  could  not  have  a  retrospect  to 


use 


ited.  the  time  of  the  birth  of  her  children,  to  the  effect  of  giving  them 

civil  rights. 

7. 
CONKLIN  v.  HAVENS,  August  T.  1815.  12  Johns.  Rep.  314. 

The  same  Trespass  and  false  imprisonment.  One  Conklin  was  owner 
has  been  a-  of  a  negro  slave,  named  Maria,  and  her  daughter  Cloe,  and  by  his 
New-York!  w^  bequeathed  as  follows  :  "  Item,  I  give  my  negro  wench,  Maria, 

her  time  ;  and  I  give  to   Maria  her  daughter  Cloe,  during   her 

natural  life."     The  plaintiff  was  a  child  of  Cloe,  and  the  question 

was,  whether  she  was  a  slave. 

Per  Cur.      Yates,  J.     Our   opinion  is,  that  by  the  words  of  the 

will  the   testator  gave   Cloe  to  her  mother  during  the  life  of  the 

*  In  the  circuit  court  of  the  United  States,  Judge  C ranch  held,  in  the  cases  of  Ne 
groes  Peter  and  Lewis  v.  D.  T.  Cureton  and  Preness,  November  T.  1824,  that  thechil. 
dren  of  a  female  slave  sold  for  a  term  of  years,  born  during  the  servitude,  are  the  slaves 
of  the  person  entitled  to  the  service  of  the  mother  at  the  time  of  the  birth.  And  the 
same  principle  was  decided  in  the  case  of  Negro  Sarah  v.  Elijah  Taylor,  November  T. 
1818,  and  Negro  Fanny  v.  Isaac  Kell.  May  T.  1824. 


OF  THE  INCREASE  OF  SLAVES.  27 

mother.  According  to  the  principles  of  law,  a  person  hiring  an 
animal  is  entitled  to  the  increase,  because,  for  hiring  for  a  time  he 
becomes  temporary  proprietor  for  the  time  of  the  animal.  And 
the  doctrine  becomes  stronger  where  the  hiring  is  for  life. 

The  children  of  Cloe  were  born  during  the  life  time  of  Maria, 
and  while  she  was  entitled  to  her  services.  They,  therefore, 
belonged  to  her  ;  and  in  case  of  her  decease,  to  her  legal  re 
presentatives  ;  and  if  there  be  no  such  representatives,  which  is 
probably  the  case  in  this  instance,  the  children  being  the  issue  of 
her  own  daughter,  they,  of  course,  have  become  free.  The  plain 
tiff  being  one  of  those  children,  if  not  entitled  to  his  freedom  alto 
gether,  at  all  events,  cannot  be  claimed  by  the  defendant  in  this 
case. 

(B.)  OF  THE  GRANT   OR  DEVISE  OF  THE  INCREASE. 

1. 

PULLER'S  EXR'S  v.  PULLER.  December  T.  1824.  3  Rand.  Rep.  83. 

This  was  a  bill  by  Mrs.  Puller  against  the  executors  of  her 
husband,  enjoining  them  not  to  sell  two  slaves,  Garret  and  Icy,  The  word 
which  they  had  advertised.  inT'wiii 

The  testator,  Puller,  on  the  4th  of  March,  1818,  made  his  will,  shouj.d  «f- 

nprctlly    DQ 

and  devised  as  follows  :   (l  I  give  to  my  beloved  wife,  Ann  Puller,  restricted 
500  acres  of  land,  including  my  present  dwelling,  and  a  negro        ' 
woman  named  Jenny,  and  her  increase,"  £c.     Jenny  had  two 
children,  Garret  and  Icy  ;  the  youngest  of  whom  was  14  years  of  include 
age  at  the  date  of  the  will.     Jenny  was  near  40  years  of  age  at  the  born  be- 
date  of  the  will,  and  had  borne  no  children  for  the  last  14  years,    ' 
which  was  known  to  the  testator.     And  the  question  was,  whether 
these  children  passed  under  the  will  to  Mrs.  Puller ;   or,  in  other 
words,  whether  the  term  increase  in  a  will  conveyed  the  past  as 
well  as  the  future  children.     The  Chancellor  decreed  in  favor  of 
Mrs.  Puller,  and  the  defendant  appealed. 

The  court  (Coalter,  Cabell,  and  the  President, delivering  opinions) 
held,  that  the  wordjncrease  ought  to  be  construed  to  apply  to  the 
future  offspring,  if  the  expression  be  not  enlarged  by  the  context 
of  the  will,  or  other  admissible  evidence.  See  Reno  v.  Davis, 
4  Hen.  &  Munf.  283. 

Per  Cabelly  J.,  after  observing  the  decree  must  be  affirmed, 
said,  there  is  not  only  no  case  fixing  the  import  of  the  term  increase, 
but  it  is  most  certain  that  when  taken  abstractedly,  it  is  variously 
understood  even  among  judges.  Chancellor  Wythe  and  Judge 
Fleming  gave  it  an  enlarged,  and  Judge  Tucker  and  the  Judge 


28  SLAVERY. 

who  preceded  me,  gave  it  a  restricted  interpretation.  I  am  also 
inclined  to  believe,  that  it  is  generally  used  in  the  restricted  sense, 
so  as  to  embrace  future  increase  only  ;  and  although  it  is  quite 
common  to  and  expressly  the  term  future,  yet  that  is  done  out  of 
abundant  caution  to  remove  all  doubt  upon  the  subject. 

2. 
BANKS'  ADM'R  v.  MARKSBURY.     Spring  T.    1823.  3   Little's 

Rep.  275. 

The  owner       The  administrator   of  Rachel  Banks  sued  Marksbury  in  detenue, 

of  a  female    .  ,          , 

slave   may  W  recover  sundry  slaves. 

fneeofrh£       The  Plaintiff  claimed  title  under  a  deed  of    gift  of  Samuel 

children,      Marksbury,  which  was  in  these  words :   "  For  and  in  consideration 

ture   in-      of  love  and  good  will  I  bear  to  my  children,  I  give  and  grant  to  my 

another.  t0  son>  Samuel  Marksbury,  my  negro  wench  Pen  ;  and  her  increase 

from   this  time   I  do  give  to  my    daughter  Rachel  Marksbury." 

Rachel  intermarried  with  William  Banks,   and  the  wench  had 

several  children,  now  held  by  the  defendant.     The  court  instructed 

the  jury,  that  the  plaintiff  had  no  right  to  recover. 

Per  Cur.  It  is  contended,  that  no  interest  in  the  slave  in  question 
passed  by  the  deed,  being  her  future  increase  which  was  given,  and 
the  donor  had  nothing  in  him  to  give  at  the  time  ;  and  that  a  man 
cannot  make  a  good  grant,  or  gift,  unless  the  thing  be  in  him  at 
the  time  of  the  grant,  according  to  the  maxim  nemo  dot  quod  non 
habet.  Without  controverting  the  correctness  of  this  maxim,  or  of 
the  principle  on  which  it  is  founded,  we  have  no  hesitation  in  say 
ing,  that  it  is  inapplicable  to  the  present  case.  He  who  is  the  ab 
solute  owner  of  a  thing,  owns  all  its  faculties  for  profits  or  in 
crease  ;  and  he  may,  no  doubt,  grant  the  profits  or  increase 
as  well  as  the  thing  itself.  Thus,  it  is  every  day's  practice  to 
grant  the  future  rents  or  profits  of  real  estate  ;  and  it  is  held,  that 
a  man  may  grant  the  wool  of  a  flock  of  sheep  for  years.  Noy's 
Max.  83.  The  interest  which  the  donor's  daughter  Rachel  took 
in  the  increase  of  Pen  must,  indeed,  from  its  nature,  have  been 
contingent  at  the  time  of  the  gift ;  but  as  the  children  of  Pen  were 
thereafter  born,  they  would,  by  the  operation  of  the  deed,  vest  in 

the  donee. 

3. 
RENO'S  EX'RS  v.  DAVIS  AND  WIFE.     November  T.  1809.     4 

Hen.  &  Munf.  283.  ;  KERNON  v.  ROBERTS,  1  Wash. 
Rep.  107.  ;  DAVIS  v.  MILLER,  1  Call,  127.  ;  SHELTON 
v.  SHELTON.  1  Wash.  Rep.  56. 

increa7e°\n      THE  case  depended  upon  the  construction  of  Reno's  will,  which 


OF  THE  INCREASE  OF  SLAVES.  29 

was  in  the  following:  words  :  "  Item,  I  give  and  bequeath  unto  my  a   wil1    is 

*    ambigu- 

daughter,  Jane  Reno,  a  negro  woman  and  her  increase,  named  ous,  and  if 
Sib,  to  her  and  her  heirs  forever."  Before  the  date  of  the  will,  '^^B 
Sib  had  two  children,  and  after  the  death  of  the  testator  had  ed  by  ,a[! 

parts  01  the 

another  ;  and  the  question  was,  whether  the  claimant  was  entitled  will  taken 


to  all  the  children,  or  only  to  the  one  born  after  the  testator's 

death  plain,ed  b? 

parol  testi- 

The  court  held,  that  the  word  increase,  (without  the  word  future  mony, 
prefixed,)  in  the  bequest  of  a  female  slave,  was  ambiguous,  and 
must  be  explained  by  the  whole  will  taken  together  ;  and  if  the 
meaning  of  the  testator  cannot  be  discovered,  then  parol  testimony 
may  be  admitted.  See  Couts  v.  Craig,  2  Hen.  &  Munf.  622.  ; 
Fleming  v.  Willes,  2  Call's  Rep.  5. 

Per  Fleming,  J.  The  word  increase  may  well  be  construed  to 
include  the  children  of  Sib,  born  as  well  before  as  after  the  date 
of  the  will,  and  ought  to  be  construed  most  favorably  to  the  lega 
tees,  and  to  have  the  same  import  as  if,  instead  of  the  word  increase, 
he  had  used  the  word  offspring.  And  I  am  rather  inclined  to  be^ 
lieve,  that  all  the  children  of  Sib  were  intended  to  pass  by  the  be 
quest,  as  the  word  increase  precedes  the  name  of  the  mother  ;  and 
if  the  testator  had  intended  that  none  should  pass  but  those  there^ 
after  born,  he  probably  would  have  bequeathed  Sib  and  her  future 
increase,  which  would  have  removed  all  doubt  upon  the  subject. 

4. 

MARLIX  v.  MARLIN.  August  T.  1832.     3  Yerger's  Tennessee 

Rep.  546. 

On  the  20th  May,  1813,  W.  Lucas,  of  Orange  county,  Vir-  The  words 
ginia,  made  and  published  his  last  will  and  testament.  Among  crease^'  ^ 
numerous  bequests  in  the  will,  is  the  following  :  "  I  lend  to  my  the  bequest 

0  J    of    female 

daughter,  Rachel  Marlm,  three  negroes,  now  in  her  possession,  slaves,  ex- 
Hannah,  Harry,  and  Major,  during  her  natural  life,  and  after  her  ^embrace 
decease,  I  give  unto  all  the  children  of  Sarah  Marlin.  deceased,  such  in~ 

'   crease      as 

the  negroes  above  named,  to  be  equally  divided  among  them,  with  are  born 
all  their  future  increase,  to  them,  their  heirs,  &c.  forever."     By  bequest 
the   same  will  he  gave  to  his  daughter  Rachel  Marlin,  his  negro  ™nnot  &by 
girl  Winney,  then  in  her  possession,  with  all  her  future  increase.  construe- 
In  eight  or  nine  bequests  of  specified  slaves  in  this  will,  is  the  same  tended    to 
conclusion  to  each,  "  with  their  future  increase." 

Per  Cur.     Peck,  J.     The  question  raised  by  the  pleadings  and  mcrease' 
proof  is,  whether  the  offspring  of  the  slaves  named,  born  before 


30  SLAVERY. 

the  will,  passed  by  the  words  in  the  bequest.  It  appears  the  slaves 
in  controversy  were  born  prior  to  making  the  will.  The  case 
of  Rind's  Ex'r  v.  Davis  and  Wife,  4  Hen.  £  Munf.  283.,  is,  we 
think,  decisive  of  the  construction  to  be  put  upon  this  will.  There 
the  question  was,  whether  the  term  increase  carried  with  it  the 
negroes  previously  born  ;  but  the  court  agreed  in  that  case,  that 
the  terms  "  future  increase,"  in  the  will  would  have  put  the  case 
beyond  doubt,  and  would  have  included  only  the  after-born  slaves. 
The  word  future,  (so  often  repeated,)  must  be  taken  as  having 
been  intentionally  and  understandingly  used  by  the  testator  when 
he  was  making  his  will.  The  estate  claimed  by  the  plaintiff  was  a 
remainder.  Now,  what  remainder,  it  may  be  asked,  after  the  death 
of  Mrs.  Marlin  1  To  ascertain  this,  we  are  conducted  to  the  pro 
perty  loaned  for  life,  Hannah,  Harry,  and  Major.  These  are 
given  by  name,  and  by  number,  "  my  three  negroes  ;"  and  the 
conclusion  of  the  clause,  "  the  negroes  above  stated,"  negatives 
the  presumption  that  others  than  those  named  were  intended  to 
pass  in  remainder.  The  testator  must  be  taken  as  knowing  his 
property  at  the  time  he  is  making  these  bequests.  The  children  of 
Hannah  in  being,  when  he  gave  those  named,  are  not  of  the  life 
estate  ;  and  how  shall  they  be,  by  any  construction,  made  part  of 
the  remainder  over  1  We  find  a  bequest  in  the  will  of  "  Nan  and  all 
her  children."  If  it  was  intended  that  the  children  of  Hannah,  with 
the  exception  of  Winney,  should  pass,  why  not  use  the  like  words 
as  those  used  in  the  bequest  of  Nan  ?  The  will  is  carefully  drawn, 
and  the  repetition  of  the  words,  "  future  increase,"  added  to  the 
fact  that  previously  born  children  were  bequeathed  in  some  in 
stances,  is  not  only  persuasive,  but  conclusive,  to  show  that  it  was 
not  the  intention  of  the  testator  to  give  prior  increase  with  "  Han 
nah,  Harry,  and  Major,"  given  by  name.  The  death  of  these  during 
the  life  estate  may  produce  inequality  in  the  distribution ;  but  we 
are  not  to  forget  that  the  property  is  perishable  ;  that  it  could  hap 
pen  to  others  of  the  devisees  as  well  as  to  complainants.  No  fore 
sight  could  guard  against  the  contingency,  or  anticipate  with  cer 
tainty  the  length  of  Mrs.  Marlin's  life.  Be  these  things  as  they 
may,  we  follow  the  obvious  import  of  the  words  used,  and  accord 
with  the  construction  given  to  like  words,  relating  to  like  property, 
by  all  judges  in  a  sister  state.  The  decree  must  be  reversed,  and 
the  bill  dismissed. 


OF  THE  INCREASE  OF  SLAVES.  31 

5. 

FULTON  v.  SHAW.  January  T.  1827.  4  Rand.  Rep.  597.  ; 
SHELTON  v.  BARBOUR,  2  Wash.  Rep.  64.  ;  PEGRAM  v. 
ISABEL,  2  Hen  &  Munf.  193.  ;  MARIA  v.  SURBAUGH,  2 
Rand.  Rep.  228. 

Fanny  Shaw  brought  an  action  to  recover  her  freedom  against  Where  a 
Elizabeth  B.  Fulton.     It  appears  that  in   1788,  John  Fitzgerald, 
by  a  deed  of  emancipation,  in  pursuant  to  the  act  of  1782,  relin- 
quished  his  right  to  Mary  Shaw,  and  declared  her  free  ;  "reserving  a   reserva- 
an  absolute  right  or  claim  to  all  such  child  or  children  which  the  the   future 
said  Mary  Shaw  may  hereafter  bring,  or  may  have  born  of  her 


body."     And  the  question  was,  whether  Fanny  Shaw,  the  child  of  slaves,  the 

_       *  -  reservatiom 

Mary,  was  free,  or  a  slave.  is  void. 

Per  Cur.  Carr,  J.  Upon  the  execution  of  this  deed,  Mary 
Shaw  became,  to  all  intents  and  purposes,  free,  unless  this  effect  was 
prevented  by  the  subsequent  reservation  of  an  absolute  right  to 
any  children  she  might  afterwards  have.  It  is  clear,  that  it  was  not 
the  intention  of  the  grantor,  by  this  subsequent  clause,  to  modify 
or  narrow  the  freedom  before  given.  The  clause  relates  solely  to 
future  increase.  The  deed  bestows  present  freedom  on  Mary 
Shaw.  The  reservation  had  no  present  effect.  It  could  only 
operate  on  a  future  contingency.  Mary  might  never  have  chil 
dren.  In  that  case,  the  reservation  would  be  a  nullity,  Would 
such  a  clause  suspend,  or  in  any  way  affect  the  freedom  given 
immediately,  and  without  qualification,  by  the  former  part  of  the 
deed  ?  Unquestionably  not. 

We  must  give  the  instrument  its  true  meaning,  and  that  is  exceed 
ingly  plain.  The  grantor  meant  to  emancipate  Mary  Shaw,  fully 
and  immediately,  and  to  hold  in  slavery  any  children  she  might 
afterwards  have  ;  and  the  only  question  is,  not  a  question  of  inten 
tion,  but  of  power.  Could  the  grantor,  by  giving  the  mother  per 
fect  freedom,  reserve  to  himself  any  interest  in  her  future  children? 
When  a  female  slave  is  given  to  one,  and  her  future  increase  to 
another,  such  a  disposition  is  valid,  because  it  is  permitted  to  a  man 
to  exercise  control  over  the  increase  and  issues  of  his  property 
within  certain  limits.  But  when  she  is  made  free,  her  condition  is 
wholly  changed.  She  becomes  a  new  creature  ;  receives  a  new 
existence  ;  all  property  in  her  is  utterly  extinguished  ;  her  rights 
and  condition  are  just  the  same  as  if  she  had  been  born  free.  After 
thus  devesting  himself  of  all  property  in  the  mother,  the  grantor 


32  SLAVERY. 

could  not  reserve  to  himself  a  right  to  hold  her  future  progeny  in 
slavery.  A  free  mother  cannot  have  children  who  are  slaves. 
Such  a  birth  would  be  monstrous,  both  in  the  eye  of  reason  and 
the  law.  The  reservation  was  therefore  repugnant  to  the  grant. 

^    V'  6. 

HAMILTON  v.  CRAGG.  June  T.  1823.  6  Har.  &  Johns.  Rep.  16. 

The  intent  Petition  for  freedom.  It  appeared  that  Rachel  Turner  bequeathed 
as  f°U°ws  •  "  Item,  I  give  and  bequeath  unto  my  loving  sister, 
Sarah  Turner>  five  negroes,  by  name  Frank,  Joe,  Bill,  Mill,  and 
Lin,  to  possess  and  enjoy  during  her  natural  life,  them,  and  their 
increase ;  and  my  will  is,  that  after  my  said  sister's  death,  the  above- 
named  negroes  be  free,"  Sarah  Turner  bequeathed  all  her  pro 
perty  to  Hamilton,  the  appellant;  and  Cragg,  the  petitioner,  is  the 
son  of  Mill,  and  was  born  after  the  death  of  Rachel  Turner,  and 
during  the  life  of  Sarah  Turner. 

Buchanan,  J.,  held,  that  by  force  of  the  words  of  the  will,  the 
petitioner  was  entitled  to  his  freedom.  There  being  no  limitation 
over  on  the  death  of  Sarah  Turner,  and  the  words,  "  the  above 
named  negroes,"  were  intended  to  be  used  as  words  of  description, 
not  to  be  restricted  to  those  who  were  before  mentioned  by  name, 
but  must  be  understood  as  applying  to  all  who  were  the  subject  of 
the  bequest,  the  issue  as  well  as  their  mothers.  They  were  all 
placed  in  the  same  state  and  condition  during  the  life  of  Sarah 
Turner,  and  no  difference  in  their  condition  after  her  death  was 
intended,  but  were  all  of  them  the  objects  of  the  benevolence  of 
the  testatrix. 

7. 

MARIA  v.  SURBAUGH.  Feb.  T.  1824.  2  Rand.  Rep.  241,  242. ; 
CATO  v.  DORGENNY,  8  Martin's  Rep.  218. ;  CHEW  v.  GARY, 
6  Har.  &  Johns.  526. 
The    issue 

of  slaves  The  rule  is  well  settled  in  several  of  the  states,  and  is  taken 

liberty  at  a  ^rom  tne  CIV1^  ^awj  tnat  tne  issue  of  slaves  entitled  to  future  liberty, 
iTbomdbe-  or  entitled  to  'li  at  a  nxed  time,  or  upon  a  contingency,  if  born  be- 
before  the  fore  the  period  arrives,  or  the  contingency  happens,  are  slaves. 
slaves^6  And  the  same  principle  was  decided  in  Frank  v.  Milane,  1  Bibb's 
Rep.  615. 


OF  THE  INCREASE  OF  SLAVES.  33 

8. 
FRANK  v.  SHANNON'S  EX'RS.  Fall  T.  1809.  1  Bibb's  Rep.  615. 

Suit  for  freedom.     The  children  of  Sibley,  a  slave  in  Pennsyl-  The   same 
vania,  before  the  act  for  the  gradual  abolition  of  slavery,  was  duly  hasSn  a- 
registered  there,  and  was  taken  to  Virginia,  and  afterwards  to  Ken-  ^pted.kiL 
tucky,  where  the  children  were  born.     The  Court  held,  that  the 
issue  born  in  Kentucky  of  her  were  slaves  ;  and  that  if  they  had 
been  born  in  Pennsylvania,  whereby  an  incipient  right  to  freedom, 
under  the  laws  of  that  state  for  the  gradual  abolition  of  slavery 
had  attached,  the  removal  to  Kentucky  would  not  have  defeated 
that  right  to  freedom  which  the  law  gave  them.     But  the  children 
here  had  never  been  in  Pennsylvania,  or  subject  to  her  territorial 
jurisdiction.     The  legislature  of  Pennsylvania  have  not  attempted 
to  extend  the  operation  of  their  statutes  to  slaves  born  extra  ter- 
ratorium,  although  the  mother  of  them  may  have  been  registered 
under  the  operation  of  their  laws. 

9. 

FANNY  v.  BRYANT.  Oct.  T.  1830.  4  J.  J.  Marshall's  Rep.  368. 
BANKS'  ADM'R  v.  MARKSBERRY,  3  Little's  Rep.  230. ;  HART 
v.  FANNY  ANN,  6  Monroe's  Rep.  49. 

The  question  was,  whether  Fanny,  a  colored  woman,  was  free  or  And  the  „ 

_,  .  owner     of 

not.     George  Smith,  by  deed  dated  1798,  emancipated  his  negroes,  slaves  may 
Some  of  them  to  be   free   immediately,  and  others  at  the  future  donf  to™6 
times  specified  in  the  deed.     The  mother  of  Fanny,  and  her  in- 
crease,   was  to  be  free  the   1st  of  January,   1816.     Fanny,  was 
born  since  1798,   and  before  1816.     The  circuit  court  instructed 
the  jury,  that  Fanny  is  a  slave,  and  they  found  for  defendant. 

Per  Cur.  Robertson,  Ch.  J.  The  maxim  partus  sequitur  ven- 
trem,  does  not  apply  to  this  case.  If  the  grantor  had  been  silent 
as  to  the  "  increase,"  and  no  intention  to  liberate  the  children 
could  be  inferred  from  the  deed,  then  Fanny  would  be  undeniably 
a  slave,  because  her  mother  was  a  slave  when  she  was  born.  In 
such  a  case,  the  issue  would  be  born  a  slave,  and,  "partus  sequi 
tur  ventrem,"  would  fix  her  doom.  But  the  grantor  had  the  power 
to  secure  Fanny  before  her  birth,  all  the  benefits  of  freedom,  and 
thus  liberate  her  from  hereditary  slavery.  Although  it  is  a  gene 
ral  maxim,  that  no  one  can  give  what  he  has  not,  nevertheless,  the 


34  SLAVERY. 

owner  of  a  thing1,  being  entitled  to  all  its  capacities,  may  grant 
them  to  another  :  thus,  the  owner  of  a  flock  of  sheep  may  grant 
the  wool  which  shall  grow  on  them.  The  owner  of  real  estate, 
corporeal  or  incorporeal,  may  grant  its  future  profits.  The  owner 
of  a  female  slave  may  grant  her  future  increase.  In  all  such 
cases  the  grantor  has  a  potential  right  to  the  thing  granted,  because 
he  has  the  perfect  right  to  the  thing,  of  which  it  is  the  natural 
offspring,  or  to  which  it  is  incident. 

As,  therefore,  the  grantor  could  have  granted  to  another  a  valid 
legal  title  to  Fanny,  by  deed  dated  before  she  was  born,  he  had  an 
equal  right  to  grant  her  to  herself,  or  to  grant  to  her  liberty* 
Whether  the  grant  would  take  effect,  was  contingent.  It  depend 
ed  on  her  birth.  The  instant  when  she  was  born  the  grant  ope 
rated,  and  it  became  certain  and  effectual  on  the  first  day  of 
January,  1816.  A  deed  of  emancipation,  liberating  a  female  slave 
and  "her  increase,"  on  a  given  day,  infuturo,  emancipates  all  her 
issue  born  after  the  date  of  the  deed.  Judgment  reversed. 

10. 

BARRINGTON  v.  LOGAN'S  ADM'RS.  Fall.  T.  1834.      2   Dana's 

Rep.  432.      WILLIAMSON  et  al.  v.  DANIEL  et  al.  12  Wheat. 

Rep.  568.     And  see,  FRANK  ADM'S.  v.  MILANS'  EX'RS  1 

Bibb's  Rep.  615. ;  and  AMY  v.  SMITH,  1  Little's  Rep.  326. 

The  rule  of      Winney,  Julian,  and  Henry  Barrington,  children  of  Dinah  Bar- 

Pquihir  vln-  rington,  a  woman  of  color,  who  was  born  in  Pensylvania  in  1800, 

trem  is  uni-  an(j  brought  into  Kentucky,  where  her  children  were  born,  brought 

followed,     suit  against  the  appellee  for  their  freedom. 

The  question  depended  upon  whether  Dinah,  the  mother,  was 
a  free  woman  or  slave  when  the  children  were  born. 

The  circuit  supposed  she  was  a  slave  until  she  arrived  at  28 
years  of  age,  and  the  children  being  born  before  that  period,  they 
were  slaves  also. 

On  appeal  to  this  court,  they  held,  that  all  persons  born  in 
Pensylvania  since  the  act  of  that  state  for  the  gradual  abolition  of 
slavery  took  effect  in  1780,  were  born  free.  Those,  then,  in 
slavery  were  continued  so.  Children  born  afterwards,  who,  but 
for  the  act,  would  have  been  slaves,  became  apprentices,  with  all 
the  liabilites  and  immunities  of  apprentices,  bound  to  serve  those 
to  whom  as  slaves  they  would  have  belonged,  until  they  attained 
28  years  of  age.  And  the  court  proceed  :  "  We  cannot  doubt, 
then,  that  Dinah  Barrington  was  born  free,  and  never  was  a  slave  ; 


OF  THE  INCREASE  OF  SLAVES.  35 

and  as  she  was  never  a  slave,  her  children  must  be  free.  Had 
they  been  born  in  Pennsylvania  the^  would  certainly  have  been 
born  free.  The  fact,  that  they  were  born  in  Kentucky  cannot 
prejudice  their  natural  and  legal  rights,  for  partus  sequitur  ventrem 
is  the  law  of  this  state  ;  and  we  know  of  no  law,  human  or  divine, 
which  stamps  slavery,  a  nativitate,  on  children  whose  mother  was 
a  free  woman  at  the  time  of  their  birth.  The  only  legal  effect 
resulting  from  the  fact  that  the  appellants  were  born  in  this  state, 
is,  that  their  birthrights  must  be  determined  by  the  lex  loci.  Their 
mother  having  been  a  free  woman  at  the  time  of  their  respective 
births,  they,  like  all  other  children  of  free  mothers,  were  by  the 
law  of  the  place  of  their  birth  born  free  absolutely,  at  once,  and 
forever. 

11. 

M'CuTCHEN  et.  al.  v.  MARSHALL  et.  al.     January  T.  1331. 
8  Peters'  Rep.  220.     HOPE  v.  JOHNSON,   supra. 

The  testator,  M'Cutchen,  devised  to  his  wife,  Hannah,  all  his  Children 


slaves,  provided  that  at  her  death  they  should  be  set  free,  and  for-        a  qua- 
ever  be  liberated  from  slavery,  with  the  exception  of  those  who  lifie.d  .man' 

J  '  umission 

were  not  of  age  at  the  death  of  his  wife,  who  were  to  remain  oftheirmo- 

under  the  control  of  the  testator's  brother  and  brother-in-law  until  boTn'  3 

they  became  of  age,  when  they  were  to  be  set  free.     Rose,  one  slaves' 

of  the  female  slaves,  and  her  children,  were  to  be  set  free  on  the 

death  of  his  wife,   absolutely  and  entirely.      Eliza  and  Cynthia, 

two  other  slaves,  had  children  born  after  the  death  of  the  testator, 

and  before  the  death  of  his  wife.     Nothing  was  said  in  the  will  as 

to  the  children  of  Eliza  and  Cynthia.     After  the  death  of  the  wife, 

the  heirs  of  the  testator  claimed  all  the  slaves  and  their  increase,  to 

be  distributed  among  the  next  of  kin   of  the  testator.     They  al 

leged  in  their  bill,  that  by  the  laws  of  Tennessee,  slaves  cannot  be 

set  free   by  last  will    and   testament.     That  if  the  law  does  not 

authorize  emancipation,  that  they  are  still   slaves  until  the  period 

of  emancipation  ;  and  that  the  increase  born  after  the  death  of 

the  testator,  and  before  their  mothers  were  actually  set  free,  were 

slaves,  and  as  such  liable  to  be  distributed.     And  the  bill  charged 

that  Marshall,  the  defendant,  being  the  legal  representative,  re 

fused  to  distribute  the  said  slaves  and  their  increase  among  the  next 

of  kin.     Marshall  demurred  to  the  bill,  and  the  circuit  court  sus 

tained  the  Demurrer,  and  ordered  the  bill  to  be  dismissed  ;  and 

the  complainants  appealed  to  this  court. 


3G  SLAVERY. 

Per  Cur.  Thompson,  J.  The  laws  of  Tennessee  authorize  the 
emancipation  of  slaves  in  the  manner  provided  for  in  the  will  of  the 
testator.  It  is  an  admitted  rule  in  the  state  of  Tennessee,  that  the 
issue  of  a  female  slave  follows  the  condition  of  the  mother.  If, 
therefore,  Eliza  and  Cynthia  were  slaves  when  the  children  were 
born,  it  will  follow  as  a  matter  of  course  that  their  children  were 
slaves  also.  If  this  was  an  open  question,  it  might  be  urged  with 
some  force  that  the  condition  of  Eliza  and  Cynthia,  during  the  life 
of  the  widow,  was  not  that  of  absolute  slavery,  but  was  by  the  will 
converted  into  a  modified  servitude,  to  end  upon  the  death  of  the 
widow,  or  on  their  arrival  at  the  age  of  21  years,  should  she  die 
before  that  time,  If  the  mothers  were  not  absolute  slaves,  but 
held  in  the  condition  just  mentioned,  it  would  seem  to  follow,  that 
their  children  would  stand  in  the  same  condition,  and  be  entitled 
to  their  freedom  on  their  arrival  at  the  age  of  21  years.  But  the 
course  of  decisions  in  the  state  of  Tennessee,  and  some  other 
states  where  slavery  is  tolerated,  goes  strongly,  if  not  conclusively, 
to  establish  the  principle,  that  females  thus  situated  are  slaves  ; 
that  it  is  only  a  conditional  manumission,  and  until  the  contin 
gency  happens  upon  which  the  freedom  is  to  take  effect,  they  re 
main,  to  all  intents  and  purposes,  absolute  slaves;  and  the  court 
do  not  mean  to  disturb  the  principle.  The  children  of  Eliza  and 
Cynthia  must,  therefore,  be  considered  as  slaves. 


(V.)  OF  SLAVES  CONSIDERED  AS  PROPERTY. 
(A.)  WHEN  CONSIDERED  AS  REAL  PROPERTY. 

;       :        Iftfj   Vf/:i       "'  i    '^    !  vtj 

M'DOWELL'S  ADM'X  v.  LAWLESS.  October  T.  1827.  G  Monroe's 

Rep.  141. 

Slaves  are       Hel(1  by  the  court'  tliat  slaves   Devised  pass  as  real  estate  im- 
considered   mediately  to  the  devisee  ;  if  not  specifically  devised,  thev  pass  to 

as  real  pro-  .  J   J 

perty.          the  personal  representatives.     The  same  principle  was  decided  in 
Enlaw's  Ex'r.  v.  Enlaw,     3  Marshall's  Rep.  229. 


OF  SLAVES  CONSIDERED  AS  PROPERTY.  37 

2. 

PLUMPTON  v.  COOK.     Fall  T.    1820.     2  Marshall's  Rep.  450. 

Plumpton  sued  out  an  attachment  against  Cook,  as  an  abscond-  many  pur. 
ing  debtor ;  and,  on  motion  of  the  defendant,  the  attachment  was  P^J  P®£ 
dismissed.     One  of  the   reasons  was,  that  the  bond  recites  an  at-  perty. 
tachment  against  the  personal  estate,  when  the  attachment  pro 
duced  is  against  the  goods,  chattels,  and  slaves. 

Per  Cur.  The  reason  assigned  by  the  circuit  court  must  be 
predicated  on  the  supposition,  that  between  the  recital  in  the  bond 
of  an  attachment  against  personal  estate,  and  the  attachment  as  it 
issued  being  against  slaves,  as  well  as  goods  and  chattels,  there  was 
an  essential  variance.  But  slaves  are,  in  their  nature,  as  much  per 
sonal  estate  as  goods  and  chattels,  and  are  expressly  made  liable 
to  an  attachment.  It  is  true,  that  by  the  positive  law  of  this 
country,  slaves  are  declared  to  be  real  estate;  but  by  the  same  law, 
there  are  to  that  rule  so  many  exceptions,  that  they  may,  at  least 
in  common  parlance,  and  by  common  intent,  be  sufficiently  de 
scribed  as  personal  estate.  Judgment  reversed. 

3. 
M'CAMPBELL  v.  GILBERT'S  ADM'RS.    October  T.  1831. ;  6  J.  J.  t^ysta™g 

Marshall's  Rep.  592. ;   GROVES  v.  LUCKY,  1  Marshall's  Rep.  in  wills  as 

real  estate. 

74 ;  JUSTICES  OF  MASON  v.  LEE,  1  Monroe's  Rep.  251.  ; 

THOMAS  AND  WIFE    v.    TANNER,  6   Monroe's  Rep.  58.; 

SNEED  v.  EWING  AMD  WIFE,  5  J.  J.  Marshall's  Rep.  48. 
Per  Cur.  Underwood,  J.  Since  the  passage  of  the  act  of  1800, 
(2  Dig.  1247.)  requiring  slaves  to  pass  by  last  wills  and  testa 
ments  as  real  estate,  an  executor  has  no  title  in,  or  power  over  a 
slave  specifically  devised,  unless  some  power  is  expressly  reserved 
to  him.  And  he  cannot  hire  them  out,  or  even  take  possession  of 
them. 

4. 
CARROL  et  al  v.  CONNET.   Fall  T.  1829.     2   J.  J.  Marshall's 

Rep.  201. 

Per  Cur.  Robertson,  Ch  J.     The  administrator  is  liable  for  fail-  Siattefcfor 
ure  to  distribute  slaves.     Although  for  some  purposes,  slaves  are  SentPSf" 
declared  by  statute  to  be  real  estate,  they  are  nevertheless  intrinsi-  debts- 
cally  personal,  and,  therefore,  are  to  be  considered  as  included  in 
every  statute  or  contract  in  relation  to  chattels  which  does  not  in 
terms  exclude  them.     They  are  liable  as  chattels  to  the  payment 
of  debts.     They  may  be  attached  as  chattels,  and  they  have  inva- 


SLAVERY. 

riably  been  treated  as  chattels,  in  both  Virginia  and  Kentucky,  so 
far  as  the  rights  and  duties  of  administrators  are  concerned.  Red 
wood  v.  Reddick  and  Wife,  4  Munf.  Rep.  222.  ;  Little's  Sel.  Cas. 
475.  ;  Graves  et  al  v.  Downe  et  al,  3  Monroe's  Rep.  354. 

(B.)  WHEN  CONSIDERED  AS  PERSONAL  PROPERTY. 

1. 

HAWKINS'  ADM'R  v.  CRAIG  AND  WIFE,  Dec.  T.  1827.     6  Mon 

roe's  Rep.  254. 

The    bus-       Detinue  for  slaves.    It  appeared  that  Mrs.  Craig,  the  wife  of  the 
-  defendant,  was  the  widow  of  Singleton,  and  at  his  death  became 


tasSl\vife°f  entitled  to  the  slaves  mentioned  in  the  declaration  as  her  dower  in 
on  his  death  his  estate  j  that  she  afterwards  married  John  Hawkins,  who,  for 

pass  to   his  ,..111 

represen-  many  years  held  possession  of  the  slaves,  claiming  them  as  the  dower 
of  his  wife  in  the  estate  of  Singleton.  And  after  Hawkins  died, 
the  slaves  were  held  by  his  wife  until  she  married  Craig,  the  defend 
ant.  Administration  was  granted  on  the  estate  of  Hawkins  to  the 
appellants,  who  claimed  the  slaves  as  having  vested  in  Hawkins, 
but  he  refused  to  deliver  them  up,  on  the  ground  that  the 
slaves  survived  to  his  wife  on  the  death  of  Hawkins,  and  that  the 
administrator  had  no  right  to  them. 

Per  Cur.  Owsley,  J.  If  the  right  which  the  husband  acquires 
in  the  dower  of  slaves  of  the  wife,  be  of  the  same  sort  as  that 
which  he  is  entitled  to  in  her  dower  lands,  we  would  readily  admit, 
that  after  the  death  of  the  husband  it  would  survive  to  the  wife, 
and  not  pass  to  the  representatives  of  the  husband.  But  slaves  are 
for  most  purposes  considered  as  chattels.  There  is  one  section 
of  the  act  which  goes  explicitly  to  place  the  right  of  the  husband 
to  the  interest  of  the  slaves  of  his  wife  on  the  footing  of  chattels, 
and  is  taken  from  the  acts  of  the  Virginia  legislature.  The  courts 
of  that  state  have  decided  that  husbands  are  entitled  to  the  inter 
est  of  slaves,  whether  belonging  to  their  wives  at  the  time  of  the 
marriage,  or  accruing  to  them  during  coverture,  upon  the  footing 
of  chattels.  Wallace  and  Wife  v.  Taliaferro  and  Wife,  2  Call.  447.  ; 
Pinkardv.  Smith  and  Wife,  Little's  Sel.  Cas.  331.  ;  Banks  v.  Marks- 
berry,  Little's  Rep.  275.  In  neither  of  the  cases  to  which  we  have 
referred  did  the  question  arise  as  to  what  right  the  husband  acquired 
in  the  dower  slaves  of  his  wife,  but  they  all  involved  the  ques 
tion  of  right  in  the  husband  to  the  slaves  of  his  wife,  and  they  all 
recognise  the  principle,  that  since  the  passage  of  the  act  of  Vir- 


OF  SLAVES  CONSIDERED  AS  PROPERTY.  39 

ginia,  from  which  the  act  of  this  country  was  copied,  the  husband 
is  entitled  to  the  same  right  to  slaves  owned  by  his  wife  at  the  time 
of  marriage,  or  which  accrue  to  her  during  coverture,  that  he  would 
be  entitled  to,  were  they  to  every  purpose  chattels  only,  so  that 
whether  the  wife  has  an  estate  in  fee  simple  in  a  slave,  or  but  an 
estate  for  life  only,  and  whether  she  came  to  the  estate  by  her  own 
act,  or  by  operation  of  the  law,  the  principle  is  the  same,  and  the 
right,  be  it  greater  or  less,  vests  as  chattels  in  the  husband,  if  re 
duced  to  his  possession  during  coverture.  It  follows,  therefore, 
that  if  the  slaves  in  contest  belonged  to  Mrs.  Craig,  whilst  she  was 
the  wife  of  Hawkins,  and  they  were  reduced  by  him  to  possession, 
though  in  right  of  his  wife's  dower,  only  the  entire  right  of  his  wife 
vested  in  him,  and  at  his  death  that  right  passed  to  the  appellants, 
as  his  administrators. 

2. 

CHINN  AND  WIFE  v.  RESPASS.   Fall  T.  1824.   1  Monroe's 

Rep.  23. 

Per  Cur.  Slaves  were  declared  by  law  to  be  real  estate,  Slaves  pass 
and  directed  to  descend  as  lands  descended  to  the  heir  at  law.  JJ^Y  af^ 
But  it  does  not  follow  that  the  testator,  by  the  devise  of  his  personal  vise  of  per- 

S  0113*1         GS* 

estate,  did  not  intend  that  his  slaves  should  pass  ;  for  although  tate. 
slaves  were  by  law  made  real  estate,  for  the  purpose  of  descent 
and  dower,  and  perhaps  some  others,  yet  they  had  in  law  many  of 
the  attributes  of  personal  estate.  They  would  pass  by  a  nuncupa 
tive  will,  and  lands  would  not  ;  they  were  liable  to  be  sold  for  the 
payment  of  debts,  and  lands  were  not  ;  they  could  be  limited  in  a 
grant  or  devise  no  otherwise  than  personal  chattels  ;  and  personal 
actions  might  be  brought  to  recover  the  possesion  of  them.  Be 
sides,  they  were  in  their  nature  personal  estate,  being  moveable 
property,  and  such  as  might  attend  the  person  of  the  proprietor 
wherever  he  went  ;  and  in  practice  they  were  so  considered  and 
treated  by  the  people  in  general.  When,  therefore,  a  man  devised 
his  personal  estate,  he  must  be  understood  to  intend  that  his  slaves 
should  pass  thereby,  unless  he  used  some  expressions  indicating  a 
different  intention. 


3. 
ENLAWS  v.  ENLAWS.  Spring  T.  1821.     3  Marshall's  Rep.  228. 

The  court  held,  that  the  slaves  of  a  female  immediately  on  the 


marriage  vests  in  the  husband  ;    and   although  she  may  survive  husband  on 
...  the     inar- 

,  her  right  to  the  slaves  is  not  revived.  riage. 


40  SLAVERY. 

4. 

BEATTY  v.  JUDY  et  al.  Spring  T.  1833.  1  Dana's  Rep.  101. ; 
PLUMPTON  v.  COOK,  2  Marshall's  Rep.  450. ;  CHINN  et 
ux.  v.  RESPASS,  1  Monroe's  Rep.  28. 

wn'tracte         Per  Cur'     Roberteon,  Ch  J.      It  has  been  frequently  said  by  this 
and  wills     court,  that  the  phrase,  "  personal  estate,"  in  wills  and  contracts, 

the  term 

personal    without  any  other  restrictive  expression  or  provision,  should  be 
'  m   construed  as  embracing  slaves.* 

them. 

5. 

SNEED  v.  EWING  AND  WIFE.  April  T.  1831.   5  J.  J.  Marsh. 

Rep.  481. 

considered  Held  ^y  the  court,  Robertson,  Ch.  J.,  that  slaves  are,  in  every 
respect,  except  as  to  descents  and  last  wills,  personalty.  They 
go  to  the  administrator,  and  may  be  assets  in  his  hands  for  pay 
ment  of  debts.  And  the  heir  cannot,  without  the  assent  of  the 
administrator,  maintain  a  suit  for  a  slave  of  the  intestate.  They 
must  be  distributed  according  to  the  lex  domiciliL  See  Plumpton 
v.  Cook,  2  Marsh.  Rep.  451.;  Hawkins  v.  Craig,  6  Monroe's 
Rep.  257. 

6. 

JUSTICES  OF  MASON   COUNTY  v.   LEE,  1  Monroe's  Rep.  254. 

And     they 

are    assets       Held  by  the  court,  that,  prior  to  the  act  of  1800,  slaves  though 
hands6    of  specially  devised  passed  immediately  to  the  executor,  and  were  as- 
executors,    sets  m  jjjs  hands  ;  but  since  the  act  they  pass  as  lands  absolutely 
to  the  devisee. 

Held,  also  by  the  court,  that  slaves  were  assets  in  the  hands  of 
the  administrator,  and  he  represents  them  as  completely  with  re 
gard  to  controversies  concerning  their  title,  as  he  does  any  other 
chattel. 


*  Whether  slaves  are  personal  or  real  estate  depends  upon  the  local  enactments  in 
the  different  states.  In  South  Carolina  it  is  declared  that  slaves  shall  be  taken,  reputed, 
and  adjudged  in  law  to  be  chattels  personal ;  2  Brev.  Dig.  220.  but  in  Louisiana,  they 
are  real  estate ;  1  Martin's  Dig.  612.  in  Kentucky  as  to  the  law  of  descents  they  are 
considered  as  real  estate,  but  they  are  chattels  for  the  payment  of  debts;  2  Latt.  &  Swi. 
1115.  and  the  cases  in  the  text. 


OF  TITLE  TO  SLAVES.  41 

7. 
CONCLUDE  v.   WILLIAMSON,  ADM'R    or    CONCLUDE,     1   J.    J. 

Marshall's    Rep.   16. 

Tha  legislature  of  Kentucky,  in  1825,  Sessions  Acts,  p.  195.,  pass-  And  they 
ed  an  act  declaring  the  plaintiff  in  error,  Zacheriah  Conclude,  cheauo  the 
should  be  a  freeman,  and  should  inherit  the  estate  of  Isaac  Con-  state  asrm 

case     of 

elude,  his  father,  who,  being  a  free  man  of  color,  had  died  without  real  estate 
heirs.     Zacheriah  instituted  this  suit  against  Williamson,  averring  of  heirs.] 
that  he  had  in  his  possession  $200  assets,  and  praying  for  a  decree 
for  that  amount.     The  administrator  admitted  in  his  answer,  that 
he  received  of  the  estate  $400,  but  that  he  had  paid  it  away  in  the 
purchase  of  a  daughter  of  the  intestate  in  pursuance  of  his  wish 
often  expressed.     The  circuit  court  dismissed  the  bill,  and  com 
plainant  appealed  to  this  court. 

Per  Cur.  Robertson,  Ch.  J.  A  slave  is  not  subject  to  escheat* 
but  vests  in  the  administrators  or  executors,  as  assets  for  the  bene 
fit  of  creditors.  And  the  administrator,  having  assented  to  the 
act  of  emancipation,  cannot  urge  any  personal  right  to  the  party 
emancipated.  The  personal  property  of  one  dying  without  an 
heir  is  derelict 


(VI.)     OF  TITLE  TO  SLAVES* 

(A.)  BY  DEED. 

1 

DAVIS    v.    MITCHELL.  Dec.  T.  1833.  5  Yergei's  Tennessee 

Rep.  281. 

This  suit  was  brought  to  recover  a  slave.      The  plaintiff  proved 
that  the  slave  had  been  given  to  him  whilst  an  infant  ;  that  at  the  not  neces- 
time  of  making  the  gift,  possession  of  the  slave  was  given  to  his  pass     title 

__      to  a   slave 

when  pos- 

*  Slaves  may  be  sold  and  transferred  from  one  to  another  without  any  statutory  re-   session  fol- 
striction  or  limitation,  as  to  the  separation  of  parents  and  children,  &c.,  except  in  the    ac^m 
state  of  Louisiana.     Stroud's  Sketch  of  Slavery  in  the  different  States,  page  50.     It   nies    th 


e 


is  stated  in  Stephens  on  West  Indian  Slavery,  that  in  the  Spanish  and  Portuguese   gift  or  sale. 

settlements,  and  in  the  French  colonies  by  the  Code  Noir,  that  the   husband  cannot 

be  sold  without  the  wife,  nor  can  the  parents  without  the  children.     See  Stephens' 

Slavery,  p.  69.    Code  Noir,  art.  47.     Slaves  may  be  sold  by  creditors  for  the  debts  of 

their  owners  in  all  the  states  but  Louisisana,  where  they  cannot  be  separated  from  the 

land.     1  Martin's  Dig.  612.  Act  of  July  7,  1806.     The  law  was,  however,  the  same 


42  SLAVERY 

guardian,  and  that  he  had  remained  with  his  guardian  for  three 
years  and  more,  before  he  came  to  the  possession  of  the  defendant. 
The  plaintiff  did  not  produce  any  deed  or  bill  of  sale  which  had 
been  registered ;  none  having  been  made.  The  court,  among  other 
things,  charged  the  jury,  that  the  act  of  1784  was  not  repealed  by 
the  act  of  1801,  so  that  there  was  still  a  necessity  for  a  bill  of  sale. 
The  jury  found  a  verdict  for  the  defendant;  and  a  motion  for  a  new 
trial  having  been  made  and. overruled,  the  plaintiff  prosecutes  this 
writ  of  error  to  this  court. 

Per  Cur.  Green,  J.  In  this  case  the  judge  below,  among  other 
things,  told  the  jury  that  "  the  act  of  1784  is  not  repealed  by  the 
act  of  1801,  so  that  there  is  still  a  necessity  for  a  bill  of  sale." 
Although  the  act  of  1784  is  not  repealed,  nevertheless,  the  succeed 
ing  sentence  of  the  charge  is  too  broad.  A  deed  registered  is  only 
necessary  where  possession  does  not  accompany  the  gift  or  sale. 
It  has  been  constantly  held,  that  where  possession  is  delivered  at  the 
time  a  gift  or  sale  of  a  slave  is  made,  it  is  good  as  between  the  par 
ties,  and  vests  a  title  without  a  deed.  2  Hay.  Rep.  G2,  67.  87.  ; 
Cains  &  Wife  v.  Marley,  1  Yerg:  Rep.  582.  But  from  this  charge 
it  would  seem  the  judge  considered  a  bill  of  sale  as  necessary  in 
all  cases,  in  order  to  communicate  title.  In  this  he  erred.  Judg 
ment  reversed. 


ATKINSON  v.  CLARKE.  Dec.  T.  1831.     3  Devereaux's  Rep.  171. 
Supreme  Court  of  North  Carolina. 

A  deed  of       This  was  an  action  of  trespass,  for  taking  from  the  possession 

slaves,         of  the  plaintiff  two  negroes.     The  defendant  pleaded  not  guilty, 

nbtotterfed  and  Put  in  a  sPecial  justification  under  final  process  to  himself  as 

bcribinSUb"  sneri^>  aSaillst  tne  property  of  one    Titnstal      At  the   trial  the 

witness,  is  plaintiff  produced  a  deed  of  gift,  dated  the  18th  of  April,  1822, 

whereby  Tunstal,  in  consideration  of  the  love  and  affection  which 

he  bore  to  his  daughter,  the  wife  of  the  plaintiff,  conveyed  to  the 

latter  the  slaves  in  dispute.     This  deed  was  signed  and  sealed  by 


as  that  which  prevails  in  the  United  States,  and  in  the  British  West  Indies.  Edwards' 
History  of  the  West  Indies,  vol.  2.  book  4.  But  in  the  Spanish,  Portuguese,  and 
French  possessions  it  is  different.  Plantation  slaves  are  real  estate,  and  cannot  be 
seized  and  sold  separate  from  the  land  they  cultivate.  Stephens  on  Slavery,  p.  63. 
dnnales  de  la  Martinique,  tome  1,  p.  285.  Nor  can  the  husband,  wife,  and  children 
be  separated.  Ibid. 


OF  TITLE  TO  SLAVES.  43 

Tunstal,  but  was  not  attested  by  a  witness,  and  was  registered 
upon  proof  of  the  donor's  hand-writing ;  and  the  plaintiff  proved 
as  possession  of  the  slaves  conveyed  by  it  up  to  the  year  1827. 
The  Judge  below  instructed  the  jury,  that  neither  the  deed  from 
Tunstal  to  the  plaintiff,  nor  the  possession  under  it,  gave  the  plain 
tiff  title  ;  and  the  plaintiff  appealed, 

Per  Cur.  Ruffin,  J.  The  superior  court  does  not  seem  to  have 
erred  upon  any  of  the  points  made  in  that  Court. 

The  deed  from  Tunstal  to  the  plaintiff  is  void.  Palmer  v.  Faucett, 
2  Deveraux's  Rep.  240. 


SMITH  et  ux.  v.  YEATES.  Dec.  T.  1827.     1  Devereaux's  North 
Carolina  Rep.  302. 

Detinue  for  a  negro.       On  the  trial  the  plaintiff  offered  in  evi-  TLfe  act  of 

1806,  re- 
dence  the  following  paper,  which  was  procured  and  registered.        quiring 

gifts    of 

"  Received  of  Mariana  Lewis  ten  dollars  in  cash,  it  being  for  a  slaves  to  be 
certain  negro  boy,  Tony.     May  18,  1822.  ted  by  wri- 

"  JAMES    JOHNSON."         ting,     can 
not  be  eva- 

The  wife  of  Johnson  proved  that  Mariana  Lewis,  who  after-  j^fitious1 

wards  intermarried  with  the  plaintiff,  resided  with  her  at  the  house  sale  ;  there 

fore  where 
of  her  husband  ;   that  before  the  date  of  the  instrument  she  had  the   donor 

heard  Johnson  express  an  intention  of  giving  Tony  to  Mariana,  jonee   the 

That  on  the  18th  day  of  May,  1822,  Johnson  repeated  this  decla-  ^^ 

ration,  but  observed,  that  he  could  not  give  the  negro,  unless  some  and   then 

money  was  paid  him  by  Mariana,  and  said  if  she  would  give  him  delivered 


ten  dollars,  Tony  should  be  hers.     Mariana  replied  that  she  had 

not  the  money  ;  he  told  her  that  she  could  borrow  it  of  his  wife.  back  tne 

The  money  was  accordingly  produced  by  the  witness,  and  handed  this  was 

to  Mariana,  who  gave  it  to  Johnson,  upon  which  he  wrote  the  gjft  ^4  * 

instrument,  and  delivered  it,  the  boy  being  present.     The  defend-  V01tda  ^gjj" 

ant  claimed  title  under  the  will  of  Johnson,  of  a  subsequent  date. 

His  honor  instructed  the  jury,  that  to  constitute  a  valid  bill  of  sale, 

the  instrument  must  contain  some  words  showing  an  intention  of 

passing  the  property.     That  if  the  writing  was  not  a  good  bill  of 

sale,  they  were  to  inquire  from  the  evidence  whether  there  had 

been  a  sale,  and  an  actual  delivery.   If  there  had  been  a  sale  accom 

panied  with  a  delivery,  the  property  in  the  slave  passed,  notwith 

standing  the  act  of  1821,  although  there  was  no  bill  of  sale.    And 

that  lending,  or  even  giving  the  money,  by  Johnson's  wife,  would 


44  SLAVERY. 

not  invalidate  an  actual  sale,  accompanied  by  a  delivery.  The 
counsel  for  the  defendant  moved  the  judge  to  instruct  the  jury, 
that  if  they  thought  the  ten  dollars  was  not  in  fact  lent,  or  given, 
by  Johnson  to  Mariana,  and  that  he  did  not  mean  to  give  her  credit 
for  the  amount,  but  furnished  them  to  her,  and  received  them  hack, 
mere  colorably,  and  to  make  a  gift  under  the  pretence  and  form 
of  a  sale,  that  the  property  did  not  pass.  The  judge  declined 
giving  such  instructions,  and  the  jury  returned  a  verdict  for  plain 
tiff,  whereupon  the  defendant  appealed. 

Per  Cur.  Hall,  J.  With  respect  to  the  act  of  1821,  concern 
ing  the  sale  of  slaves,  accompanied  with  a  delivery,  the  inclination 
of  my  mind  is  with  the  judge  below.  I  also  agree  with  him  that 
the  receipt  is  inoperative,  as  a  bill  of  sale,  if  for  no  other  reason, 
because  it  has  no  subscribing  witness  to  it.  Rev.  ch.  225.  For  the 
same  reason  it  cannot  be  supported  as  a  deed  of  gift.  Rev.  ch. 
701.  The  question  then  is,  was  there  a  sale  and  delivery  of  the 
negro  in  dispute. 

The  receipt  is  evidence  that  ten  dollars  was  paid,  but  the  cir 
cumstances  attending  the  payment  are  before  us.  From  them  it 
appears  that  there  was,  in  fact,  no  payment  made  by  the  plaintiff. 
The  money  was  in  reality  paid  by  Johnson  to  himself,  so  that, 
although  the  jury  found  a  delivery,  the  payment  did  not  amount  to 
such  consideration  as  to  make  it  a  sale  of  the  slave.  If,  then, 
there  was  a  delivery,  but  upon  no  consideration,  it  was  a  gift  ;  but 
that,  by  the  act  of  1806,  Rev.  ch.  701.,  is  void,  because  not  au 
thenticated  by  deed.  A  sale,  completed  by  delivery,  requires  no 
such  evidence.  Disguise  this  case  as  you  will,  it  is  only  a  gift. 
If  it  is  considered  as  a  sale,  the  act  of  1806  may  be  evaded  by 
the  consideration  of  a  pepper  corn.  Judgment  reversed. 

4. 

PALMER    v.    FAUCETT.    Dec.  T.  1829.    2  Devereaux's  North 
Carolina  Rep.  240. 

The  7th          Detinue  for  a  slave.     After  the  plaintiff  had  made  out  his  case, 

section     of    ,       ,    r      , 

the  act  of  the  defendant  proved,  that  upon   his  marriage  with  a  daughter  of 


the  Plaintiff,  in  the  year  1821,  the  slave  in  question  had  been  put 
'ntO  *"s  Possession  bv  tne  plaintiff  ;  that  this  possession  continued, 

gifts  of  until  the  year  1825,  when  the  plainfiff  received  the  slave  again, 
and  kired  nim  for  a  Part  of  tne  vears  1825  and  1826.  After  which 
the  Slave  Was  again  Permitted  to  SO  into  the  possession  of  the  de- 

and  regifr  fendant.     There  was  proof  that  the  plaintiff  sent  to  the  defendant 


OF  TITLE  TO  SLAVES.  45 

a  writing  respecting  the  negro,  but  whether  it  was  a  letter  or  a  bill  tered,  was 
of  sale,  the  witness  did  not  know.  There  was  also  proof  of  the  the  protec- 
loss  of  this  instrument,  and  it  never  had  been  registered.  The  JjSora  and 


defendant  relied  upon  his  possession  for  three   years  under  the 
act  of  1820,  Rev.  ch.  1055.,  as  a  validation  of  his  title,  supposing  it  der  it,  a 
to  be  defective.     His  honor  instructed  the  jury,  that  as  the  act  of  faieiTgood 
1S06  avoided  all  gifts  of  slaves   unless  in  writing,  signed  by   the  Jj^we^ 
donor,  and   attested  by  a  witness,  so,  a  possession  of  a   slave  for  without   a 
three  years,  held  under  a  gift  not  evidenced,  as  that  act  required,  Periy  attes- 
would  not  confer  a  title   under  the   act  of  1820;   that  every  pos-  %y'  d^d* 
session  of  propeity  must  either  be  consistent  with,  or  in  opposition  thus  attes- 
to  the  title.     Where  the  possession  is  acquired  with  the  consent  out  its  bo- 
of  the  owner,  it  constituted  the  contract  of  bailment.     Where  the 
parties  intended  to  convey  the  titles,  but  made  use  of  a  mode  in 
operative  and  void,  the  ownership  remained  unchanged,  and  the 
possession  being  still  taken  by  the  consent  of  the   owners,  forms 
a   bailment;  and   that   supposing   such   contract    to   have   been 
constituted  when  the  negro  was  first  received  by  the  defendant, 
it  must  have  been  ended,  and  three  years'  possession  have  occurred 
since  its  dissolution,  to  enable  the  defendant  to  acquire  a  valid  title 
under  the  act  of  1820.     A  verdict  was  returned  for  the  plaintiff, 
and  the  defendant  appealed. 

Per  Cur.  Hall,  J.  The  act  of  1784,  Rev.  ch.  225.  sec.  7., 
from  its  preamble  and  the  adjudications  upon  it,  was  passed  prin 
cipally  for  the  protection  of  creditors  and  purchasers.  The  pre 
amble  is  as  follows  :  "  Whereas  many  persons  have  been  injured 
by  secret  deeds  of  gift  to  children  and  others,  and  for  want  of  for 
mal  bills  of  sale  for  slaves,  and  a  law  for  perpetuating  such  gifts 
and  sales."  It  then  provides  for  the  registration  of  such  deeds, 
and  that  they  shall  be  attested  by  one  credible  witness  at  least. 
The  construction  put  upon  the  act,  that  it  was  made  for  the  benefit 
of  creditors  and  purchasers,  is  evident  from  the  cases  of  Knight 
v.  Thomas,  1  Hay.  Rep.  289.;  Cutler  v.  Spiller,  2  Hay.  Rep.  61.; 
Lynch  v.  Ashe,  1  Hawks'  Rep.  338.  ;  Rhodes  v.  Holmes,  2 
Hawks'  Rep.  193.  ;  Bateman  v.  Bateman,  1  Car.  Law  Repos.  85. 
Consistently  with  this  construction  of  the  act,  the  act  of  1792, 
Rev.  ch.  363.,  declares,  that  all  sales  of  slaves  bona  fide  made,  and 
accompanied  with  actual  delivery,  shall  be  good  without  any  bill  of 
sale.  According  to  the  cases  before  cited,  it  was  not  necessary, 
as  between  the  parties,  that  there  should  be  a  bill  of  sale  ;  or  if 
there  was  one,  that  it  should  be  attested  by  a  subscribing  witness  ; 
or  if  so  attested,  that  it  should  be  registered.  Judgment  affirmed. 


46  SLAVERY. 

5. 

PEABODY  et  al.   v.  CARROL.     Feb.  T.  1821.     9  Martin's  Loui 
siana  Rep.  295. 

When  the  Per  Cur.  Mathews,  J.  In  this  suit,  which  was  originated  by 
attachment,  two  slaves  have  been  seized  as  the  property  of  the  de- 
an  fcndant>  and  are  claimed  by  A.  Haynes,  as  belonging  to  him.  In 
real,  ffctiti-  support  of  his  claim,  he  offers  in  evidence  a  bill  of  sale  from  the 
venti°oimin  defendant,  the  fairness  and  genuineness  of  which  seems  not  to  be 
hfir^'till  disPuted-  But  il;  does  not  appear  that  the  sale  was  attended  with 
liable  to  be  a  delivery  of  the  property. 

attached  . 

fortheven-        l  here  is  a  provision  in  our  statute  relating  to  the  tradition  or 
dor's  debt    delivery  of  slaves,  which  states,  that  it  may  take  place,  either  by 
actual  delivery  made  to  the  buyer,  or  by  the  mere  consent  of  the 
parties,  when  the   sale  mentions  that  the  thing  has  been  sold  and 
delivered.     Civ.  Code,  350.  art.  28.     The  bill  of  sale  produced  by 
the  claimant  contains  no  clause  expressive  of  such  consent  of  the 
parties  as  prescribed  by  the  law  cited.       It  is  in  evidence,  that  the 
slaves  were  not,  at  the  time  of  executing  the  sale,  in  the  actual 
possession  of  the  vendor  ;  but  were  on  board  of  a  keel-boat  then 
descending  the  Mississippi,  according  to  the  testimony  of  Green, 
a  witness  examined  in  the  cause  ;  and  according  to  the  bill  of  sale, 
they  were  hired   on  board  of  the   steamboat  Gen.  Jackson.      If 
this  sale  is  to  be  considered  as  a  contract  entered  into  and  com 
pleted  in  the  state  of  Tennessee,  which  is  by  no  means  clear,  we 
have  no  evidence  before  us  of  the  lex  loci,  and  must,  consequently, 
decide  the  case  in  conformity  with  the  laws  of  the  state  where  the 
property  is  found,  and  the  suit  commenced.      In  doing  this,  there 
is  little  difficulty,  if  we  adhere  to  former  decisions  in  similar  cases, 
by  which  it  has  been  established,  that  before  actual  delivery  of  the 
thing  sold,  it  may  be   attached   by  the    creditors  of  the   vendor. 
Durnford  v.    Brooke's  Syndics,  3  Martin's  Rep.   222.     Mumford 
v.  Norris,  4  ib.    25.     As  there  has  been  no  delivery  of  the  slaves, 
either  real,  fictitous,  or  conventional,  we  are  of  opinion,  that  the 
district  court  is  erroneous  in  denying  them  to  the  claimant. 

6. 

PALMER  v.  FAUCETT.   Dec.    T.    1829.     2  Devereaux's   North 
Carolina  Rep.  240. 

The  act  of  Detinue  for  a  slave.  After  the  plaintiff  had  made  out  his  case, 
ch.  701,)  the  defendant  proved,  that  upon  his  marriage  with  a  daughter  of  the 
glftsdofg  plaintiff,  in  the  year  182 1,  the  slave  in  question  had  been  put  into  his 


OF  TITLE  TO  SLAVES.  47 

possession  by  the  plaintiff;  that  this  possession  continued  until  the  slaves   un- 

.  i   i  •       i    less  in.  w  ri- 

year  1825,  when  the  plaintiff  received  the  slave  again,  and  hired  ting,  attest- 
him  out  for  a  part  of  the  years  1825  and  1826.      After  which  the 
slave  was  again  permitted  to  go  into  the  possession  of  the  defend- 


ant.     There  was  proof  that  the  plaintiff  sent  to  the  defendant   a  tered,  is  a 

...  iMi      /•  statute     of 

writing  respecting  the  negro,  hut  whether  it  was  a  letter  or  a  bill  ot  frauds 
sale,  the  witness  did  not  know.     There  was  also  proof  of  the  loss  ™edprotf°^ 
of  this  instrument,  and  it  never  had  been  registered.     His  honor,  tion  of  do- 
the  judge,  charged  the  jury,  that  the  plaintiff  having  shown  a  title  under  it  a 


in  himself,  that  it  wasincumbent  on  the  defendanttoshow  thatit  was 
devested  :  and  as  the  latter  claimed  under  a  gift,  since  the  act  of  against  the 

donor,   un- 

1806,  he  ought  to  satisfy  them  that  the  gift  was  in  writing,  signed  less  duly 
by  the  donor,  and  attested  by  a  witness  subscribing   it  ;  and  fur-  !Jnd    regis, 
ther,  that  in  law  a  circumstance  not  made  to  appear   was  taken  as  tered' 
not  existing.       A  verdict  was  returned  for  the  plaintiff,  and  the 
defendant  appealed. 

Per  Cur.     Hall,  J.     The  act  of  1806,  Rev.  ch.  701.,  "  declar 
ing  what  gifts  of  slaves  shall  be  valid,"  was  made,  as  it  emphati 
cally  declares,  "  for  the  prevention  of  frauds,"  and  may  be  fitly 
called  a  statute  of  frauds.     It  declares,  that  no  gift  of  slaves  here 
after  to  be  made,  shall  be  good  or  available  in  law  or  in  equity, 
unless  the  same  be  made  in  writing,  signed  by  the  donor,  attested  by 
at  least  one  subscribing  witness,  and  shall  be  proved  or   acknow 
ledged  as  conveyances  of  land,  and  registered  within  one  year.  This 
act  was  made,  not  only  for  the  benefit  of  creditors  and  purchasers, 
but  also  for  that  of  donors.   It  must  be  well  remembered  what  a  fruit 
ful  source  of  litigation  parol  gifts,  and  pretended  parol  gifts,  were 
before  the  passage  of  this  act  ;  and  that,  too,  in  many  cases  where 
creditors  and  purchasers  were  not  concerned.     To  remedy  that 
mischief  the  law  was  passed  for  the  benefit  of  donors.     And  in 
proportion  as  any  of  the  requisites  of  the  acts  are  dispensed  with, 
so  in  proportion  will  the  mischief  be  left  without  remedy.     Ii»  the 
present  case,  between  the  donor  and  donee,  if  there  had  been  a 
deed  of  gift,  and  that  deed  had  been  registered,  although  the  deed 
were  lost,  there  would  be  no  difficulty  in  procuring  a  copy  of  it. 
If  deeds  of  gift  have  been  bonafide  executed,  injury  is  done  to  no 
one  by  registering  them.     Mischief  may  be  done  by  concealing 
them  until  after  the  death  of  the  donors.     But  the  act  is  positive, 
that  such  deeds  shall  be  registered  as  conveyances  of  land.     This 
clears  the  question  of  doubt;  because  nothing  passes  by  convey- 


48  SLAVERY. 

ances  of  land,  or  shall  be  good  and  available  in  law,  unless  the 
same  shall  be  acknowledged,  or  proved,  and  registered. 

I  arn,  therefore,  of  opinion,  after  full  reflection,  that  the  instruc- 
-  tions  given  by  the  judge  to  the  jury,  on  the  trial  in  the  court  below, 
were  correct.  It  is  true,  that  what  I  said  in  Justice  v.  Cobbs,  1  Dev. 
Rep.  469.,  on  the  question  of  adverse  possession,  was  extra  judi 
cial.  The  question  involved  in  the  decision  of  that  case  did  not 
require  it.  That  was  the  case  of  a  possession  where  there  was  no 
parol  gift  proved.  But  it  is  a  warning  lesson  not  to  speculate  on 
supposed  cases.  Judgment  affirmed. 

7. 

THOMAS  v.  SOPER.  Feb.  T.  1816.  5  Munf.  Rep.  28.  ALEX 
ANDER  v.  DENEALE,  2  Munf.  341. ;  ROBERTSON  v.  EWELL, 
3  Munf.  1.  ;  HAMILTON  v.  RUSSEL,  1  Cranch.  Rep.  315. ; 
HOWATT  v.  DAVIS  et  al.,  5  Munf.  Rep.  34. 

An  abso-  Detinue  for  slaves.  The  plaintiff  offered  in  evidence  an  abso- 
iUf!lavdesed  Me  deed  from  James  Thomas,  sen.,  of  whose  estate,  the  defend- 
where  the  ant  was  administrator.  The  defendant  offered  evidence  to  im- 
mains  in  peach  the  deed  as  fraudulent,  and  that  James  Thomas  held  the 
JfterTe011  slaves  from  the  time  of  executing  the  deed  to  the  time  of  his 
andCUreco  death  >  and  tnat  tne  defendant,  qualified  as  administrator  of  Tho- 
yery  of  it,  maS)  and  that  the  negroes  came  to  his  possession  as  administrator, 
lent  and  U  and  that  nulla  bona  had  been  returned  to  an  execution  against  the 
creditors10  estate  °f  Thomas.  The  court  rejected  the  evidence,  and  instruct- 
and  subse-  ecj  the  jury,  that  although  in  the  case  of  an  absolute  deed  for 

quent  pur-  .  p         , 

chasers,  negroes  where  the  vendor  remains  in  possession  alter  tne  execution, 
not  be  Ira-  and  recording  the  same,  such  deed  as  to  creditors  and  subsequent 
peached  by  purchasers  is  to  be  regarded  as  fraudulent  and  void  ;  yet,  between 

the  parties   r 

or  their  re-  the  vendor  and  vendee,  and  their  immediate  representatives,  it  was 

obligatory,  and  could  not  be  impeached  by  the  testimony  offered 
by  the  defendant  as  administrator  of  the  grantor,  which  defendant 
was  not  himjelf  a  creditor.  To  this  opinion  of  the  court  a  bill 
of  exceptions  was  filed,  and  a  verdict  being  found,  and  judgment 
rendered  for  the  plaintiff,  the  defendant  appealed  to  this  court, 
which  affirmed  the  judgment.  And  see  Thomas  v.  Soper,  5 
Munf.  Rep.  58.  ;  where  the  court  say,  that,  although  in  case  of 
an  absolute  deed  of  slaves  where  the  grantor  remains  in  posses 
sion  after  the  execution  of  the  deed,  it  is  fraudulent  and  void  as  to 
subsequent  purchasers  and  creditors  ;  yet  the  same  is  obligatory, 
and  cannot  be  impeached,  as  between  the  grantor  and  grantee 
and  their  representatives. 


OF  TITLE  TO  SLAVES.  49 

8. 
RAGAN  v.  KENNEDY.  Nov.  T.  1804.     1  Overtoil's    Rep.   91. 

Harrison,  by  a  bill  of  sale  transferred  a  negro  to  the  plaintiff,  And  where 
and  a  lot.  Harrison  being  married  to  the  plaintiff's  daughter  in  A  pril, 
1798.     A  judgment  was  obtained  against  Harrison,  and  another 
in  March  T.  1801,  and  a  fi.  fa.  issued  returnable  to  March  T.  1802.  Ml  of  sale, 
The  sheriff  sold  the  negro,  as  the  property  of  Harrison,  to  Kenne-  to  the  inte- 
dy,  the  defendant,  and  this  action  of  detinue  was  brought  against  SSaona. 
him  to  recover  the  slave. 

The  court  held,  that  a  bill  of  sale  of  slaves  made  by  a  person 
indebted,  who  retains  possession  after  the  execution  of  the  bill  of 
sale,  is  void  against  creditors,  although  a  valuable  consideration  may 
have  been  received.  The  court  say,  in  conveyances  of  personal 
property  the  law  supposes  a  transfer  of  possession.  In  subjects 
of  this  nature,  two  views  present  themselves:  one  as  between  the 
parties  themselves,  and  those  claiming  directly  under  them  ;  the 
other,  as  it  respects  such  individuals  as  may  stand  in  a  relation  to 
be  affected  by  the  transaction.  In  the  first,  delivery  of  possession 
may  not  be  necessary;  in  the  latter,  it  is  usually  otherwise. 

9. 
MADRY  v.  YOUNG.     Oct.  T.  1831.     3  Louisiana  Rep.  160. 

This  was  a  suit  instituted  by  Madry  to  recover  of  the  defendant  where  the 
a  negro  slave  named  Jack.  It  appeared  the  defendant  was  once  f€er"de^uf" 
the  owner  of  Jack,  but  exchanged  him,  in  the  state  of  Mississippi,  vendor  to 

retain  pos- 

with  one  Dawson  for  a  slave  named  Aaron.     Dawson  being  unable  session, 
to  make  a  complete  title  to  Aaron,  Young  refused  to  make  an  ab-  !Jnd    deU-S 
solute  title  to  Jack.     Dawson  executed  an  instrument  which  was  ™"  thgeold 
recorded  in  Mississippi,  where  the  transaction  took  place,  in  which  to  a  second 
he  reconveys  Jack  to  Young ;  but  this  conveyance,  to  be  defeasi-  Jhe"  latter 
ble,  if  he,  Dawson,  made  Young  a  good  title  to  Aaron,  Dawson  jjftjj*™ 
remaining  in  possession  of  Jack,  sells  him  to  one  Hunter,  who  to  the  first, 
sold   him   to   Madry;    each   sale    being   accompanied   with   de 
livery.     Young  now  claims  Jack,   and  alleges  Dawson  had  no 
authority  to  sell  him. 

Per  Cur.  Martin,  J.  Nothing  is  clearer  than  that,  if  the  ven 
dee  suffers  the  vendor  to  retain  possession,  and  he  sells  and  deli 
vers  the  thing  sold  to  the  second  vendee,  the  latter  will  hold  it  in 
preference  to  the  first.  In  the  sale  of  a  slave  in  a  state  where  the 
property  passes  by  verbal  sale  and  delivery,  if  the  vendee  suffers 


50  SLAVERY. 

the  vendor  to  retain  possession,  and  he  sells  and  delivers  the  thing 
sold  to  a  second  vendee,  the  latter  will  hold  it  in  preference  to 
the  first.  And  where  the  sale  is  accompanied  with  delivery  and 
payment  of  the  price,  it  transfers  all  the  vendor's  right  and  interest. 

10. 

BRAXTON    v.    GAINES    et    al.     Oct.  T.  1809.      4    Hen.    and 

Munf.  151. 

Where  the  The  court  held,  that  where  a  daughter  who  was  an  infant,  and 
waiSmt  held  as  purchaser  for  a  valuable  consideration  of  a  slave,  the  fact 
and  resides  that  such  child  resides  in  the  family  of  the  father,  and  there  keeps 

with  her  fa-     , 

ther.  the  slave,  and  exercises  acts  of  ownership  over  it,  the  creditors 

of  the  father  cannot  disturb  the  possession  of  the  child,  although 
the  father  had  included  the  slave  in  a  mortgage  to  indemnify  per 
sons  for  becoming  his  sureties.  She  is  considered  a  purchaser 
for  a  valuable  consideration,  and  not  a  volunteer.  See  post,  tit. 
"  Possession." 

11. 

BATTE    v.    STONE.    March   T.    1833.       4   Yerger's    Tennessee 

Rep.  168. 

A  deed  of      ^n^s  was  an  ac^on  °f  detinue,  commenced  in  the  circuit  court  of 

gift    for      Giles  county,  by  the  defendant  in  error,  to  recover  from  the  plain- 
slaves  is 
void  as  to  a  tiff  m  error  a  slave  by  the  name  of  Mary.     From  the  bill  of  excep- 

P^rSe?  tions  the  Blowing  facts  appear :  The  father  of  the  defendant  in 
vedb9  Pwo  error  executed  to  him  a  deed  of  gift  for  the  slave  in  controversy, 
witnesses,  to  which  there  were  three  subscribing  witnesses.  The  deed  was 
proved  within  the  time  prescribed  by  law,  by  one  of  the  subscrib 
ing  witnesses,  and  registered.  At  the  time  of  its  execution,  defend 
ant  in  error  was  a  minor,  living  with  his  father.  Some  time  in 
1827,  the  father  of  defendant  in  error  sold  the  slave  to  the  plaintiff 
in  error,  for  a  valuable  consideration.  Upon  the  trial  of  the  cause, 
the  defendant  in  error  offered  an  office  copy  of  the  deed  of  gift  in 
evidence.  The  production  of  the  original  was  waived  ;  but  the 
deed  was  objected  to,  because  it  was  only  proved  by  one  witness. 
The  court  overruled  the  objection;  to  which  exception  was  taken, 
and  the  defendant  in  error,  having  a  verdict  and  judgment,  the 
defendant  below  appealed  in  error  to  this  court. 

Per  Cur.  Catron,  Ch.  J.  The  main  question  in  this  cause  is, 
whether  the  deed  of  gift,  by  virtue  of  which  plaintiff  claims  title  to 
the  negro  sued  for,  was  properly  admitted  as  evidence  to  the  jury. 


OF  TITLE  TO  SLAVES.  51 

It  was  made,  in  1824,  from  the  plaintiff's  father  to  him,  and  pur 
ports  to  have  had  three  witnesses  to  it.  At  May  term,  1824,  it 
was  proved  in  the  Sumner  county  court,  by  Edward  Elliff,  one  of 
the  subscribing  witnesses,  and  certified  for  registration;  and  on  the 
first  of  July,  1824,  on  this  probate,  registered.  An  office  copy 
was  offered,  and  objected  to,  because  proved  by  one  witness  only, 
but  received.  Was  the  proof  of  one  witness  sufficient  to  author 
ize  the  registration?  The  first  act  requiring  two  witnesses  to 
instruments  required  to  be  registered,  is  that  of  1805,  ch.  16.  sec. 
2.,  which  applies  to  the  settlement  of  slaves,  or  other  personal 
property,  in  consideration  of  marriage.  The  act  of  1807,  ch.  85. 
sec.  3.,  is,  in  this  case,  the  governing  provision.  In  the  mode  of 
proof  to  authorize  registration,  there  had  been  no  difference  in 
cases  of  transfers  of  lands  or  slaves  before  1807,  and  it  is  manifest 
the  act  of  that  year  did  not  intend  to  make  any.  As  to  lands,  it  is 
clear,  two  witnesses  are  required  ;  the  deed  is  to  be  proven  by  at 
least  two  subscribing  witnesses,  "  and  all  bills  of  sale  or  other  in 
struments  of  writing  for  the  transfer  of  personal  property,  shall  be 
so  proven."  The  seventh  section  provides  for  the  registration  of 
deeds,  theretofore  made,  on  the  proof  of  only  one  witnesss,  be 
cause,  until  1805,  in  no  case  had  more  than  one  been  required. 
The  proof  by  one  witness  did  not  authorize  the  registration  of  the 
deed  ;  consequently,  the  copy  offered  in  evidence  was  incompe 
tent  to  go  to  the  jury.  Judgment  reversed. 

12. 

PIERCE  v.  GRAYS  et  al.     Feb.  T.  1818.     5  Martin's  Louisiana 

Rep.  367. 

Per  Cur.     JWathews,  J.     The  plaintiff,  and  appellant,  claims  two  In    Spain, 
slaves  from  the  defendants.     On  the  17ihof  August,  1809,  he  *0  m  in- 
purchased  from  Philip  A.  Gray,  father  of  the  defendants,  eighteen  g^s^de- 
slavcs,  and  among  them,  the  two  now  claimed,  as  having  always  livered   to 

.  .          .         °  :_      the  donee's 

remained  in  the  possession  of  the  vendor,  or  his  heirs.     On  the  father,  is 
next  day  he  executed  a  deed  of  gift  in  favor  of  Mayo  Gray,  and  Sarah  ^6%^ 

A.  Gray,  infant  children  of  the  vendor,  for  said  slaves.     The  pro-  though  he 

J9  does  not 

perty  remained  in  this  situation  till   the  17th  of  September,  1814,  formally 

when  the   donor  seems  to  have  changed  his  benevolent  intention  g^pt 
towards  the  donees,   and  declared,  before  the  judge  of  the  parish 
of  Feliciancty  his  will  and  desire  to  revoke  and  annul  "  the  deed  of 
gift  executed  by  him  in  the  year  1809,  before  Wm.  Lewis,   syndic 
of  the  district  of  Feliciana,  then  under  the  government  of  Spain," 


52  SLAVERY. 

The  fact  of  the  written  donation  executed  by  the  plaintiff  appears 
so  conclusively,  by  the  introduction  of  the  instrument  intended  as 
a  revocation  of  the  donation,  that  it  is  thought  unnecessary  to  no 
tice  the  bill  of  exceptions  of  the  defendants,  on  the  introduction 
of  parol  evidence,  to  prove  the  acknowledgment  of  the  plaintiff 
to  that  effect.  The  only  question  of  law  which  arises  out  of  these 
facts  is,  whether  the  donation  was  perfect  and  irrevocable,  without 
any  formal  acceptance,  for  the  infants  by  their  father,  or  some 
other  person. 

According  to  the  rules  laid  down  on  the  subject  of  donations, 
inter  vivos,  it  is  clear,  that  the  donor  is  bound,  only  from  the  ac 
ceptance  of  the  donation,  in  precise  terms,  and  that  it  produces 
no  effect,  except  from  the  day  of  the  acceptance.  Civ.  Code, 
220.  art.  54.  Were  the  case  to  be  decided  by  these  rules,  it  is 
probable  that  the  judgment  of  the  district  court  would  prove  to  be 
an  erroneous  one.  But  we  are  of  opinion,  that  our  code  does  not 
properly  exhibit  the  rules  by  which  the  point  in  dispute  between 
the  parties  must  be  settled.  The  contract  was  made  under  the 
Spanish  government,  and  the  municipal  laws  of  Spain  are  alone 
applicable  to  it.  These,  it  is  believed,  are  not  so  rigorous  as  our 
statute  in  requiring  a  formal  acceptance,  in  order  to  give  validity 
to  a  donation,  or  to  render  it  perfect  and  irrevocable  ;  except  in 
the  cases  laid  down  as  ingratitude,  a  change  of  situation  in  the  do 
nor,  who  has  given  the  greatest  part  of  his  estate,  the  subsequent 
birth  of  children,  &c.,  which  apply  to  donations,  complete  as  to 
form.  Gomez,  in  his  Vance,  Resolutiones,  lays  it  down,  on  the  sub 
ject  of  donations,  that  they  are  executed  in  two  modes  :  by  deli 
very,  or  promise.  By  delivery,  quando  nulla  precedente  promissione 
vcl  obligation*  quis  tradit  suum  rem  alteri  causa  donationis ;  quid  tune 
statim  valet  et  perficitur  donalio  ;  et  transit  dominium  ct  plenum  jus 
rei,  in  accipientem,  ex  titulo  et  causa  donationis.  A  donation  by 
promise  is  when  a  person  obliges  himself  to  give  or  deliver  some 
thing  to  another.  If  a  donation,  accompanied  by  the  delivery  of 
the  thing,  be  complete  and  perfect,  it  follows,  as  a  necessary  con 
sequence,  that  it  ought  to  be  considered  as  irrevocable  on  the  part 
of  the  donor,  unless  for  causes  authorized  by  law.  The  donation 
made  by  the  plaintiff,  and  appellant,  was  not  accompanied  by  any 
formal  delivery  of  the  slaves  given  to  the  appellees,  or  any  person 
for  them  ;  but  they  were  left  in  the  possession  of  their  father,  who 
held  them  before  the  execution  of  the  deed  of  gift  to  his  infant 
children.  He  was  the  proper  person  to  have  received  the  dona- 


OF  TITLE  TO  SLAVES.  53 

tion  for  them  ;  and  having  already  the  possession  of  the  slaves,  no 
formal  delivery  was  necessary  to  transfer  the  dominion  of  them  in 
full  right  to  the  donees.  We  consider  the  slaves  as  having  been  in 
the  possession  of  the  father,  under  the  donation  to  his  children, 
and  held  for  them,  from  the  time  of  the  execution  of  the  deed  of 
gift,  to  the  commencement  of  this  action.  Was  a  formal,  written 
acceptance  of  the  donation  necessary,  on  the  part  of  the  donees, 
under  these  circumstances,  to  render  it  irrevocable  by  the  donor  1 
The  court  is  of  opinion,  that  it  was  not.  It  is  very  doubtful 
whether,  by  the  laws  of  Spain,  a  formal  acceptance  be  necessary 
in  any  case  where  the  delivery  of  the  thing  accompanies  the  dona 
tion.  But  in  cases  of  minors,  infants,  and  absent  persons,  no  ac 
ceptance  is  necessary  to  render  the  donation  irrevocable,  accord 
ing  to  Gomez.  (Treatise  on  Donations,  p.  3.)  It  is  true,  that  in 
a  donation  to  an  absent  person,  it  seems  required  that  the  title  or 
deed  be  transferred  to  the  donee,  in  order  to  render  the  donation 
irrevocable  ;  or  that  a  clause  be  introduced,  by  which  the  notary, 
or  officer  before  whom  it  is  made,  be  requested  by  the  donor  to  ac 
cept  it  for  the  absent  persons,  and  that  he  then  takes  it  as  if  ac 
cepted  in  due  form.  Febrero,  1.  5.  n.  19.  These  regulations 
are  confined  to  absent  persons  ;  and  we  find  in  the  same  books, 
(n.  30.)  that  a  donor  cannot  revoke  a  donation  made  in  such  a 
manner  so  as  to  substitute  a  third  person  to  the  donee,  when  the 
substitute  is  an  infant.  From  this  view  of  the  case,  we  are  of 
opinion,  that  the  judgment  of  the  district  court  is  correct. 

13. 

GARRETT  v.  HUGHLETT.     April  T.  1800.   1  Har.  and  Johns. 

Rep.  3. 

The  court  held,  that  a  bill  of  sale  of  negroes  might  be  deemed  A  bil1  of 
fraudulent  from  other  circumstances  than  the  continuance  of  pos-  froes  may 
session.    The  act  of  assembly,  by  requiring  the  bill  of  sale  to  be  ac-  fasten? 
knowledged  and  recorded  within  a  limited  time,  intended  bv  those  fr.om  other 

circnm- 

circumstances  of  notoriety  to  take  off  the  presumption  of  fraud  ari-  stances 
sing  from  the  vendor's  continuing  in  possession.     But  if  there  were  ^dor'^ 
other    circumstances    attending    the  transaction,    which    tended  continuins 

.       _  in     posses* 

to  show  it  fraudulent,  those   circumstances  might  be  given   in  sion- 
evidence. 


54  SLAVERY. 

14. 

PIERCE  v.  CURTIS  et  al.  March  T.  1819.     6  Martin's  Louisiana 

Rep.  413. 

sold,  "re™'     Per  @ur'     Mathews,  J.     In  this  case  the  plaintiff,  and  appellant, 


sues  ^or  ^e  recoverv  °^  a  slave,  described  in  the  petition.  The 
he  is  liable  action  was  commenced  against  Curtis  alone,  who,  at  the  time,  had 
ed  for8  his  possession  of  the  slave.  Gayles,  the  other  defendant,  intervened, 
and  claimed  the  slave,  in  his  answer,  as  his  own,  suggesting  fraud 
in  the  transaction,  by  which  the  plaintiff  obtained  his  title  to  the 
slave.  Both  Pierce  and  Gayles  claim  the  slave  under  Curtis. 
The  evidence  on  record  shows  the  following  facts  :  —  On  the  21st. 
of  October,  1813,  Curtis,  by  a  notarial  act,  sold  the  slave  in  ques 
tion  to  Abner  Stanley,  and  retained  a  mortgage  for  his  payment. 
It  does  not  appear  that  the  sale  was  attended  with  any  tradition  ; 
but  Curtis  held  possession  of  the  slave  till  August,  181  4,  when  Stan 
ley,  at  his  instance,  conveyed  to  Pierce,  by  a  notarial  act,  all  the 
title  which  he  acquired  by  the  act  of  sale  in  1813.  After  this, 
Curtis  continued  to  possess  the  slave,  as  his  own,  until  some  time  in 
1815,  when  the  sheriff  of  East  Baton  Rouge  sold  him,  under  an 
execution,  upon  and  against  the  property  of  Curtis,  and  Curtis 
purchased  him,  at  the  sheriff  's  sale.  On  this  statement  of  facts, 
the  only  question  to  be  decided  is,  whether  the  slave  sold,  thus  re 
maining  with  the  vendor,  and  never  having  been  delivered  to  the 
vendee,  was,  or  not,  liable  to  be  seized  and  sold  to  satisfy  the  debt 
of  the  former.  The  case  of  Durnford  v.  Brook's  Syndics,  3  Mar 
tin's  Rep.  222.  259.,  is  relied  upon  by  the  counsel  of  the  defendant, 
and  appellee,  Gayles,  and  is  certainly  completely  applicable  to  the 
present  case,  except  that  in  the  former  the  things  sold  were  mer 
chandise,  which  pass  by  a  mere  verbal  agreement  and  delivery, 
whereas,  the  dispute  is  now  about  a  slave,  the  title  to  whom  has 
been  transferred  by  public  and  authentic  acts.  But  we  are  of  opi 
nion,  that  this  circumstance  cannot  operate  against  third  persons, 
such  as  creditors,  so  as  to  defeat  their  just  claims  founded  on  prin 
ciples  recognized  in  the  above  case.  There  is  not  any  evidence 
that  the  slave  was  ever  delivered  to  Pierce,  or  that  the  latter  ever 
exercised  any  act  of  ownership  over  him,  except  that  which  is  de 
rived  from  an  extra-judicial  acknowledgement  of  Curtis,  whose  in 
terest  it  is  to  countenance  the  forced  sale  by  which  he  was  to  be 
benefited.  It  is  true  that,  according  to  our  statute,  the  delivery  of 
a  slave  who  is  sold  takes  place  when  it  is  really  made  to  the  buyer, 
or  by  the  mere  consent  of  the  parties  ;  when  the  sale  mentions, 


OF  TITLE  TO  SLAVES.  55 

that  the  slave  has  been  sold  and  delivered  to  the  buyer,  or  when 
he  was  already  in  possession  under  another  title.  Civ.  Code,  350. 
art.  28.  But  this  constructive  delivery  does  not  appear  from  the 
expressions  of  the  act  of  sale,  and  there  is  evidence  that  the  slave 
remained  in  the  possession  of  the  vendor. 

15. 

DORSEY  v.  GASSAWAY.  June  T.  1809.  2  Har.  &  John's  Rep.  402. 

Held  by  the  court,  Chase,  Ch.  J.,  that  if  slaves  remain  in  posses-  And  whe- 
sion  of  the  vendor,  the  bill  of  sale  must  be  recorded  ;  and  whether  J^ve  thre_ 
they  remained  in  his  possession  is  a  matter  of  fact  for  the  jury.     If  ™ains  ™ith 

J      J  the  vendor 

they  find  they  were  not  in  his  possession,  the  bill  of  sale  is  not  or  not,  is  a 
required  to  be  recorded,  and  is  not  evidence,  although  it  was  Set.61 
recorded,  unless  the  execution  of  it  be  proved. 

16. 

RICE  v.  HANCOCK.  Nov.  T.  1824.     1  Harper's  Rep.  393. 

The  defendant  gave  an  absolute  bill  of  sale  of  a  slave,  which  The  consi- 
stated  a  past  consideration.  The  court  held,  he  was  not  precluded  fhT^eed^ 
from  showing  that  no  consideration  was  in  fact  paid.  ma.y  b,e  H1" 

quired    in- 

Per  Cur.  Gantt,  J.  The  consideration  paid  for  the  negro  to- 
might,  or  might  not,  have  been  inserted  in  the  bill  of  sale,  and  the 
transfer  in  law  would  have  been  as  effectual  one  way  as  the  other. 
The  insertion  is  more  a  matter  of  form  than  substance,  and  in  no 
event  can  preclude  the  party  from  inquiring  into  it.  Had  the  de 
fendant  offered  evidence  to  show  that  the  bill  of  sale  was  intended 
to  transfer  a  less  interest  than  what  was  expressed  therein,  or  that 
another  negro  than  the  one  described  was  intended,  &c.  then  such 
evidence  would  be  in  contradiction  to  the  deed,  and  not  admissi 
ble.  In  transactions  of  this  kind  it  is  well  known  that  the  consi 
deration  expressed  in  the  instrument  is  not  always  paid  down,  but 
secured  by  bond,  note,  or  verbal  promise,  and  it  is  the  business  of 
the  purchaser  to  fortify  himself  with  evidence  of  having  paid  the 
consideration  agreed  to  be  given. 

17. 

MONDAY  v.  WILSON  et  al.  August  T.  1832.  4  Louisiana 
Rep.  338.  ;  S.  P.  TRAHAN  v.  M<MANUS  et  al.,  2  Louis 
iana  Rep.  209. ;  and  see,  9  Martin's  Rep.  648.  ;  6  Mar 
tin's  Rep.  N.  S.  324. 

Per   Cur.     Mathews,  J.     In  this  case  the  Plaintiff  claims  two  Where  ^ 
slaves,  which  are  in  the  possession  of  the  defendant.     The  for-  vendor   of 


56  SLAVERY. 

mer  sets  up  a  title  derived  from  Morgan,  evidenced  by  an  authen 
tic  act  passed  before  the  parish  judge  of  East  Feliciana  The 
defendant  claims  the  same  property  in  virtue  of  a  sheriff's  sale 
made  by  the  sheriff  of  St.  Helena,  in  which  it  was  sold  as  belonging 
to  the  vendor  of  the  plaintiff.  The  cause  was  submitted  to  a  jury 
in  the  court  below,  who  found  a  verdict  for  the  defendant,  and 
judgment  being  rendered  thereon,  the  plaintiff  appealed. 

The  evidence  of  the  case  shows  that  the  slaves  in  question  were 
on  a  plantation,  situated  in  the  parish  of  St.  Helena,  belonging  to 
Morgan,  under  whom  both  parties  to  this  suit  claim  title  ;  one  by 
a  voluntary  sale,  the  other  by  a  forced  sale,  made  under  execution 
by  the  sheriff  of  the  parish  aforesaid.  The  sale  to  the  plaintiff 
was  made  to  the  plaintiff  on  the  18th  of  October,  1830.  The 
sheriff's  sale  took  place  in  January,  1831,  and  was  made  under 
an  execution  which  issued  on  a  judgment  confessed  by  Morgan  in 
favor  of  the  defendant  Wilson.  The  validity  of  the  sale  is  con 
tested  on  the  ground  of  irregularities  in  the  proceedings  of  the 
sheriff,  he  not  having  pursued  the  formalities  required  by  law  ne 
cessary  to  give  effect  to  forced  alienations  of  property  under  our 
judicial  proceedings.  Whether  the  regularity  of  the  course  pur 
sued  by  the  sheriff,  in  the  sale  by  him  made,  could,  under  any  cir 
cumstances,  be  inquired  into  in  the  collateral  manner  in  which  it  is 
here  presented,  need  not  be  examined  in  the  present  case,  as  the 
court  is  of  opinion  that  the  plaintiff  in  the  execution  did  not  adopt 
the  means  afforded  him  by  law  to  render  the  property  now  in  dis 
pute  liable  to  be  seized  and  sold  under  his  execution. 

The  sale  from  Morgan  to  the  plaintiff  is  by  authentic  act,  made 
in  due  form,  a  fair  price  stipulated  for  the  slaves  sold,  a  mortgage 
reserved  on  them  to  secure  payment,  and  the  deed  contains  a  de 
claration  that  they  have  been  delivered  to  the  buyer. 

In  addition  to  this  clause  of  delivery,  the  record  shows  that  the 
purchaser  had  possession  of  them,  as  agent  or  manager  of  the 
plantation  of  the  seller;  and,  as  stated  by  the  witness,  Wrilliam, 
had  the  management  of  these  identical  slaves  in  the  fall  of  1830. 

On  the  subject  of  tradition  or  delivery  of  the  slaves,  it  is  stated 
in  article  2484  of  the  Louisiana  Code,  that  it  takes  place  in 
three  ways :  "  Either  by  real  delivery  made  by  the  buyer,  or  by 
the  mere  consent  of  the  parties,  when  the  sale  mentions  the  thing 
sold  has  been  delivered,  or  when  the  buyer  was  in  possession  under 
another  title."  But  the  article  2456,  provides,  "that  in  all  cases 
where  the  thing  sold  remains  in  possession  of  the  seller,  because 


OF  TITLE  TO  SLAVES.  57 

he  has  reserved  the  usufruct,  or  retains  possession  by  a  precarious 
title,  there  is  reason  to  presume  that  the  sale  is  simulated,  &c. 
Now,  it  appears  to  us,  that  when  the  seller  remains  ia  actual  pos 
session  without  a  reservation  of  usufruct,  retention  of  the  property 
sold  under  color  of  any  precarious  title,  the  same,  or  perhaps  a 
stronger  reason  may  exist  to  induce  a  belief  that  the  sale  was  simu 
lated  and  fradulent.  Indeed,  it  is  believed  to  be  a  principle  re 
cognized  in  all  systems  of  jurisprudence,  that  where  the  seller  of 
property  keeps  possession,  this  circumstance  constitutes  an  indi 
cium,  or  badge  of  fraud  in  relation  to  third  persons  ;  and  perhaps 
property  thus  circumstanced  might  be  legally  seized  by  creditors 
of  the  vendor,  without  compelling  them  to  resort  to  actions  of 
nullity  to  set  aside  such  contracts,  and  that  the  mere  mention  of 
delivery  in  the  act  of  sale  ought  not  to  defeat  the  right  which  credi 
tors  have  to  seize  property  as  belonging  to  a  vendor  before  tradition. 
In  the  present  instance  before  the  purchaser  is  shown  to  have  been 
in  possession  of  the  property  sold,  under  another  title  than  that 
acquired  by  the  sale,  viz.  as  agent  for  the  seller.  Thus  situated, 
the  slaves,  which  were  apparently  the  property  of  the  plaintiff,  both 
by  sale,  evidenced  by  notorial  act,  and  by  actual  possession,  could 
not  legally  be  seized  as  belonging  to  the  defendant  in  execution, 
by  the  judgment  creditor,  without  causing  the  sale  of  the  plaintiff 
to  be  annulled  by  an  action  directly  instituted  for  that  purpose. 

(B.)  BY  DEVISE.* 

1. 

UPSHAW    v.   UPSHAW    et   al.    April    T.    1809.     2    Hen.    and 

Munf.  381. 

The  court  held,  that  a  husband  dying  in  the  life  time  of  the  wife,  A  husband 
had  no  rkht  to  devise  away  slaves  to  which  she  is  entitled,  as  de-  cannot  de- 

J  f  .         vise  slaves 

visee   in  remainder  or  reversion,  the  particular  estate  not  having  to  which  he 

expired,  though  he  may  in  his  life  time  sell  her  interest  in  them  for  ^  rf^  e 

his  wile 

*  Slaves  are  devisable  like  any  other  chattel.  A  distinction,  however,  exists  where 
slaves  are  considered  as  real  property.  In  those  cases4hey  pass  immediately  to  the 
legatee,  and  not  to  the  executor  as  personal  estate.  The  moment  they  are  considered 
property  they  are  of  course  subjectto  those  rules  of  enjoyment  of  it  by  the  possessor,  and 
transmission  from  one  to  another,  the  common  law  has  established,  or  the  legislature 
has  declared.  With  respect  to  a  devise  to  a  slave,  it  is  held  in  all  the  states  but  Mary 
land,  that  such  devise  is  void.  Slaves  cannot  take  by  sale,  devise,  or  descent.  Cun 
ningham  v.  Cunningham,  C.  &  N.  353.  So  also  a  devise  for  the  maintenance  of 
slaves  is  void.  1  Taylor's  Rep.  209. ;  Pleasants  v.  Pleasajnts,  2  Call's  Rep.  319.  ; 
8 


58  SLAVERY. 

a  valuable  consideration.  The  same  principle  was  settled  in  Wal 
lace  and  Wife  v.  Taliaferro,  3  Call.  447.  And  Tucker,  J.,  observ 
ed,  that  the  principle  was  not  affected  by  Dade  v.  Alexander,  1 
Wash.  Rep.  30. 

2. 

SWING'S  HEIRS  v.  HANDLEY'S  HEIRS.  Fall  T.  1823.    4  Little's 

Rep.  346. 

When  Held  by  the  court,  that  grand  children  might  claim  under  a  de- 

drend  may  v^se  °f  slaves  by  the  description  of  children  ;  but  the  claim  will  only 

take  by  the  ^e  Valid  where  there  are  no  children  to  answer  the  description. 
description 

of  children.  And  see  Pringle  v.  M'Pherson,  2  Dess.  Rep.  524.,  where  the  court 
held,  that  a  bequest  of  certain  slaves  by  name,  with  "  their  families  ," 
was  under  the  circumstances  restricted  to  their  wives  and  children 
residing  in  the  same  house  with  them,  and  should  not  be  extended 
to  grand  children. 

3. 
MASON  v.  MASON'S  EX'RS.  Fall  T.  1814.     3  Bibb's  Rep.  448. 

After-pur-        Mason  made  his  will,  and  afterwards  purchased  two  slaves,  and 
skives  do    the  question  was,  whether  these  after-purchased  slaves  passed  by 


not  pass  by   th 
the    will, 

unless  it  Per  Cur.  Owsley,  J.  We  are  of  opinion  that  the  slaves  did 
beP  die*  in-  not  pass  under  the  will  ;  they  descend  as  if  no  will  had  been  made. 
testator.*  ^ke  rule  would  be  otherwise,  where  it  appeared  plainly  by  the 

will  that  it  was  the  intention  of  the  testator  that  they  should  pass 

under  it. 


Walker  v.  Bostick,  4  Dess.  Rep.  26C. ;  Brandon  v.  Huntsvilie  Bank,  1  Stewart's  Rep. 
320. 

But  in  the  case  of  Le  Grand  v.  Darnell,  2  Peter's  Rep.  664.  the  court  held,  in  ac. 
cordance  with  the  decisions  in  Maryland,  that  a  devise  of  property,  real  or  personal, 
by  a  master  to  his  slave,  entitles  the  slave  to  freedom,  by  implication.  And  see  Hall 
v.  Mullin,  5  Har.  &  Johns.  Rep.  190. 

In  some  of  the  states  the  owners  of  slaves  may  manumit  them  by  will.  In  Virginia 
and  Kentucky  a  devise  of  freedom  to  a  slave  is  effectual  to  give  them  freedom.  But 
in  other  states  the  manumission  of  slaves  is  guarded  by  legislative  enactments,  making 
it  necessary  to  have  the  assent  of  the  state,  as  in  Tennessee,  South  Carolina, Geor 
gia,  &c.  See  tit.  Emancipation. 


OF  TITLE  TO  SLAVES.  59 

4. 

LOGAN  v.  WITHERS.  April  T.  1830.     3  J.  J.  Marshall's  Rep. 
389.      S.    P.    IRONS   v.  LUCKY,  1   Marshall's    Rep.  74. 

Held  by  the  court,  Buckner  J.,  that  slaves  devised  are  not  assets  And  the 
in  the  hands  of  the  executor,  but  the  legal  title  is  immediately  ™m  htranf~ 
transferred  to  the  devise,  and  he  may  take  possession  of  them  with-  to  the  devi- 
out  the  assent  of  the  executor,  and  he  may  recover  them  by  suit 
without  giving  a  refunding  bond. 

5. 

WALTON'S  HEIRS  v.  WALTON'S  EX'RS.  Nov.  T.  1831.  7  J.  J. 
Marshall's  Rep.  58.;  M'DONALD  v.  M'MuLLiN,  2  Rep. 
Const.  Court  S.  Carolina,  97. 

And  the 
Held  by  the  court,  Robertson,  Ch.  J.,  after  refering  to  Mason  will,  will 

Mason's    Ex'rs,  3  Bibb's    Rep.    448.,    that    notwithstanding 


the  act  of  1800  has  made  slaves  real  estate,  a  general  devise  of  °Jte{j[®  tes~ 
slaves  will  pass  all  those  which  the  testator  has  at  his  death,  and 
the  devise  will  be  considered  as  speaking  at  the  death  of  the 
testator. 

6. 

WALTON'S  HEIRS  v.  WALTON'S  EX'RS.     Nov.  T.  1831.     7  J.  J. 
Marshall's  Rep.  58. 

The  court,  Robertson,  Ch.  J.,  held,  that  since  the  act  of  1800,  ^willnot 
which  makes  slaves  real  estate,  a  will  that  would  not  pass  lands  Pass  real 

estate,  is  111- 

will  not  pass  a  slave  ;  the  effect  of  the  act  is,  that  a  person  under  effectual  to 
2  1  years  of  age  cannot  devise  a  slave  ;  that  a  will  that  would  not  pas 
pass  land  will  not  pass  a  slave  ;  and  that  a  devisee  of  a  slave  will 
take  under  the  will,  in  the  first  instance,  just  as  a  devisee  of  land 
would  take  and  hold  land  devised. 

(C.)    BY    PAROL    CONTRACT. 
1. 

STRAWBRIDGE  v.  WARFIELD.  April  T.  1832.  4  Louisiana 
Rep.  21.  ;  ROBINEAU  v.  CORNIER,  1  N.  S.  456.  ;  HIGH 
LANDER  v.  FLUKE,  5  Martin's  Rep.  442.  ;  MADRY  v. 
YOUNG,  3  Louisiana  Rep.  160. 

Per  Cur.     Porter,  J.     The  judge  of  the  court  of  the  first  in- 
stance,  considered  the  verbal  sale  of  the  slave  was  null.     But  we      c 
differ  with  him  on  this  point.     On  the  provisions  of  the  old  code,  rol  proof. 


60  SLAVERY. 

the  jurisprudence  of  this  court  was  settled,  that  parties  had  a  right 
to  admit  a  parol  contract  for  the  sale  of  immovable  property  ;  and 
if  they  choose  they  might,  as  they  did  in  this  instance,  admit  parol 
evidence  to  prove  it.  The  late  amendments  to  the  Louisiana  code 
have  not  changed  those  of  the  civil  code,  except  in  recognizing  the 
validity  of  a  verbal  sale,  and  in  establishing,  by  their  authority,  the 
doctrine  that  the  exclusion  of  parol  testimony  in  relation  to  con- 
tracts  of  the  description  of  that  before  us,  is  a  privilege  which  the 
parties  may  waive. 

•2. 
BANK'S  ADM'R  v.  MARKSBERRY.    Spring  T.  1828.    3  LITTLE'S 

Rep.  275. 

But  the  Per  Cur.     It  was  urged,  that  the  gift  of  the  slaves  was  void, 

beVdeSer-  there  having  been  no  delivery  of  them  to  the  donees.  There  is 
ed,  or  the  no  doubt  that,  to  the  completion  of  a  parol  gift,  the  delivery  of  the 
mu^fbe  by  thing  is  essential  ;  but  we  apprehend  this  principle  does  not  ap- 
contin^a  pty  to  a  gift  by  deed,  if  the  deed  be  founded  on  a  good  considera- 
considera-  tion  The  relation  of  father  and  child,  which  subsisted  in  this 

tion.  * 

*  Voluntary  gifts  and  grants  are  valid  between  the  parties,  and  are  held  good  when 
the  interests  of  third  persons  are  not  affected.  Possession  should  accompany  the  gift; 
Or,  in  other  words,  a  change  of  possession  should  take  place.  It  is  a  controverted 
question,  whether  the  possession  of  the  goods  remaining  in  the  vendor  or  donor  is,  or 
is  not,  conclusive  evidence  of  fraud;  or  whether  it  is  only  prima  facie  evidence  of  it, 
and  therefore  a  proper  subject  for  the  jury  to  examine  into  and  decide.  The  distinc 
tion  probably,  in  a  great  measure,  is  determined  by  the  nature  of  the  conveyance,  or 
transfer  of  the  property.  If  the  instrument  of  conveyance  be  absolute  and  uncondi 
tional  on  its  face,  it  is  held,  the  possession  must  pass  to  the  vendee  or  donee,  otherwise 
the  transaction  will  be  held  fraudulent  by  the  court.  This  principle  was  stated  and 
acted  upon  by  Ch.  J.  Marshall,  in  Hamilton  v.  Russel,  1  Crunch's  Rep.  $09.  The 
chief  justice  observed,  that  modern  decisions  have  determined,  that  an  unconditional 
sale  where  the  possession  does  not  accompany  and  follow  the  deed,  is,  in  respect  to 
creditors,  by  the  statute  of  Eliz.,  a  fraud,  and  should  be  so  determined  by  the  court. 
And  the  principle  is  sustained  by  many  oases  in  the  courts  of  the  several  states.  Pat- 
ton  v.  Smith,  4  Conn.  Rep.  455.;  Talcott  v.  Wilcox,  9  Conn.  Rep.  134.;  Young  v. 
Pate,  4  Yerger's  Rep.  164.;  Clow  v.  Woods,  5  S.  &  R.  275.;  Babb  v.  Clemson,  10 
S.  &  R,  419.  But  in  the  case  of  Sydney  v.  Gee,  4  Leigh's  Virginia  Rep.  525.,  which 
was  a  bill  of  sale  absolute  for  certain  slaves,  and  a  delivery  to  the  vendee,  and  a  rede- 
livery  back  to  the  vendor  at  hire  for  the  price  of  their  board — the  court,  Tucker,  J., 
observed,  that  innumerable  instances  of  delivery  and  re-delivery  are  unassailable.  I 
buy  a  horse  from  a  countryman,  and  the  seller  immediately  borrows  him  to  save  him 
self  the  fatigue  of  travelling  home  on  foot.  I  buy  a  slave  in  midsummer  which  I  shall 
not  want  till  Christmas,  and  hire  him  to  the  vendor  for  the  residue  of  the  year.  I  in 
vest  money  in  slaves,  not  to  till  my  land,  but  to  let  to  hire.  I  think  these  are  cases  of 
constructive  fraud.  It  is  strongly  mv  impression,  that  the  failure  to  deliver  possession, 
where  no  real  fraud  is  intended,  does  not  attach  fraud  to  the  transaction  forever ;  and 


OF  TITLE  TO  SLAVES.  61 

case,  is  a  consideration  of  this  sort.  Such  a  consideration,  when 
coupled  in  a  deed,  was,  at  common  law,  held  sufficient  to  create  a 
trust  in  real  estate,  which  would  be  decreed  in  a  court  of  equity  ; 
and  under  the  statute  of  uses  is  sufficient  to  transfer  the  use  into 
possession,  and  thus  complete  the  legal  title  in  cestui  que  use  ;  and 
much  more  ought  such  a  consideration  be  deemed  sufficient  to 
support  a  deed  alienating  the  personal  estate. 

3. 

GAUNT  v.  BROCKMAN.     Spring  T.  1808.      Hardin's  Rep.  331.  ; 
TURNER  v.  TURNER,  1  Wash.  Rep.  139. 

It  was  held  by  the  court,  that  after  the  passage  of  the  act  of  A  parol 
Virginia,  1758,  and  before  the  operation  of  the  act  of  1785,  a  pa-  fJJves   be- 
rol  gift  of  slaves  was  void  as  between  donor  and  donee,  as  well  as 


against  creditors.  But  now  a  parol  gift  of  slaves  is  valid.  See  absolutely 
Lucy  v.  Wilson,  4  Munf.  Rep.  313.  ;  Fitzhugh  v.  Anderson  et  al.,  ginia. 
2  Hen.  £  Munf.  289.  ;  Moore's  Adm'r.  v.  Dawney,  3  Hen.  & 
Munf.  127.  ;  Boutright  v.  Meggs,  4  Munf.  Rep.  145.  ;  Johnson  v. 
Hendley,  5  Munf.  Rep.  219.  In  most  of  the  states  the  statute  of 
frauds  has  been  considered  as  made  to  protect  creditors  and  pur 
chasers,  and  a  parol  contract  for  the  sale  of  goods  and  chattels, 
and  sales  and  gifts  of  slaves,  have  been  held  valid  as  between  the 
parties  themselves,  and  are  only  void  when  creditors  are  hindered 
or  delayed,  or  the  rights  of  third  persons  affected.  See  the  cases 
Abridged,  and  Goodwin  v.  Morgan,  1  Stewart's  Rep.  278.  ;  1 
Hayw.  Rep.  289. 


that  a  subsequent  delivery  will  make  it  valid  against  all  subsequent  creditors  and  pur 
chasers.  In  New  York  it  is  the  impression  at  the  bar,  that  the  English  rule  recognized 
in  Sturtevaut  v.  Ballard,  9  Johns.  Rep.  337.,  that  where  possession  does  not  accom 
pany  an  unconditional  sale  of  goods,  it  is  evidence  of  fraud  per  se,  is  overruled  by  the 
cases  of  Ludlowv.  Kurd,  19  Johns' Rep.  221.,  and  Bissel  v.  Hopkins,  3Cowen'sRep. 
166.  And  the  same  principle  was  recognised  in  Brooks  v.  Powers,  15  Mass.  Rep. 
244.  But  admitting  the  rule  to  be  as  laid  down  in  Bissel  v.  Hopkins,  that  the  pos 
session  remaining  in  the  vendor  or  donor  is  only  prim*  facie  evidence  of  fraud,  still,  if 
the  party  is  unable  to  show  that  the  possession  is  bonafide,  and  the  transaction  fair  and 
honest,  it  becomes  conclusive  evidence  of  fraud,  and  the  jury  must  find  accordingly. 
In  Talcott  v.  Wilcox,  7  Conn.  Rep.  134.  140,  Bissel,  J.,  observed,  that  it  is  undoubted 
ly,  as  has  been  contended,  the  settled  law  of  this  state,  that  if  the  vendor  of  personal 
property  be  permitted  after  the  sale  to  retain  the  actual  and  visible  possession,  it  is, 
unexplained,  conclusive  evidence  of  fraud. 


62  SLAVERY. 

4. 
FARRELL  v.  PERRY,  Oct.  T.  1790.     1  Haywood's  Rep.  2. 


SoinNorth  ^er  ^ur'  Williams,  J.  If  a  father  at  the  time  of  his  daughter's 
Carolina,  marriage  puts  a  negro  or  other  chattel  in  the  possession  of  the  son- 
in-law,  it  is  in  law  a  gift,  unless  the  contrary  can  be  proven.  The 
same  principle  was  settled  in  Carter's  Ex'r  v.  Rutland,  ibid.  p. 
97.  And  again,  Parker  &  Wife  v.  Philips,  p.  451.  ;  Pearson  v. 
Fisher,  1  Car.  Law  Rep.  460.  ;  M'Ree  v.  Houston,  3  Murphy's 
Rep.  429.  ;  Lynch  Ex'rs  v.  Ashe,  1  Hawks'  Rep.  338.  By  the 
act  of  1806  it  is  stated  in  a  note,  Farrel  v.  Perry,  by  the  editor,  that 
no  parol  gift  of  slaVesis  good  in  any  case  in  North  Carolina,  and  that 
a  written  transfer  is  in  all  cases  necessary,  even  between  the  par 
ties.  Colten  v.  Powell,  2  Car.  Law  Rep.  432.  ;  Barrow  v.  Pender, 
3  Murphy's  Rep.  483. 

5. 

THE  EXECUTOR  OF  LYNCH  v.  ASHE.  June  T.  1821.  1  HAWKS' 
North  Carolina  Rep.  338.  ;  MADRY  v.  YOUNG,  Louisiana 
Rep.  vol.  3.  p.  162. 

Under  the  This  was  an  action  of  detinue  for  certain  slaves.  The  defendant 
relative  to  pleaded  non  detinet,  the  act  of  limitation.  It  appeared  on  the 
ohfViravnefl  trial>  that  the  father  of  the  plaintiff's  testator  died  in  March,  1781, 
transfer  by  anc|  shortly  after,  the  mother  of  the  testator  made  a  parol  gift  to  him 

parol    is 

good  as  be-  of  the  negro  woman,  for  whom  and  whose  increase  the  action  was 
original1  °  brought.  The  plaintiff's  testator  took  the  negro  woman  into  his 
parties  and  pOSSession,  but  afterwards  loaned  her  to  his  mother.  In  the  year 

volunteers     J 

under  1793,  his  mother  intermarried  with  one  Hargrove,  an  old  servant 
is  void  on-  in  the  family  of  Major  Strudwick.  The  mother,  during  her  wi- 
credTtors6  dowhood,  always  stated  the  slave  and  her  children  to  be  the  property 

and    pur-    of  her  son,  plaintiffs  testator,  as  did  also  Hargrove  after  his  mar- 

chasers  are 

concerned,  nage  ;  and  at  one  period  Hargrove  sent  them  home  to  Lynch  ;  but 

soon  after  they  were  sent  back.  In  the  year  1804,  Hargrove  and 
his  wife  separated  ;  he  removed  to  a  tract  of  land  which  hfe  obtained 
from  Mrs.  Strudwick,  carrying  the  slaves  in  dispute  with  him. 
On  the  I  Oth  of  August,  1805,  Hargrove  gave  Mrs.  Strudwick  a 
bill  of  sale  for  the  slaves,  and  at  the  same  time  Strudwick  conveyed 
to  Hargrove  an  estate  for  life  in  a  tract  of  land  by  deed,  in  which 
it  was  mentioned,  that  Hargrove  was  to  retain  possession  of  the 
slaves  during  his  life.  In  October,  1805,  Hargrove  re-conveyed 
his  interest  in  the  land  to  Strudwick.  It  was  proved  that  Strudwick 


OF  TITLE  TO  SLAVES.  63 

had  paid  some  small  debts  for  Hargrove,  and  expressed  a  wish  to 
have  the  use  of  the  slaves  while  Hargrove  lived,  saying,  that  at  his 
death  they  should  go  to  the  rightful  owner.  In  March,  1815,  Har 
grove  died,  and  plaintiff's  testator  obtained  possession  of  the  slaves, 
and  kept  them  about  a  month,  when  Strudwick  again  obtained 
possession  of  them.  The  defendant  claimed  as  distributee  under 
Strudwick.  Lynch  died,  and  his  executor  brought  this  action 
within  three  years  next  after  Strudwick  got  the  slaves  out  of  the 
possession  of  Lynch. 

The  court  instructed  the  jury,  that  (without  deciding  whether 
the  purchaser    intended  to    be    protected  by    the   act    of  1784, 
was  one  from  the  donor,  or  might  be  from  any  person  claiming 
under  the  donor,)  it  was  at  least  necessary  to  show  that  Strudwick 
was  a  bona  fide  purchaser  for  a  valuable  consideration  ;  that  a  co 
lorable  consideration  would  not  destroy  the  plaintiff's  title  ;    that  if 
they  believed  from  the  evidence,  that  Hargrove's  possession  was 
not  an  adverse  possession,  it  availed  the  defendant  nothing  ;  and  thus 
the  act  of  1 806  did  not  merge,  or  destroy  the  plaintiff's  title,  al 
though  Hargrove  or  Strudwick  had  the  negroes  in  adverse  possession 
upwards  of  three  years  after  that  act  went  into  operation  ;  because 
Thomas  Lynch,  the  plaintiff's  testator, had  regained  the  possessionin 
1815,  and  kept  them  in  his  undisturbed  possession  for  one  month, 
or  thereabouts,  at  which  time  the  title  and  possession  were  united 
in  Lynch.     And  as  this  was  in  three  years  next  before  the  com 
mencement  of  the  action,  the  act  of  limitation  did  not  protect  the 
defendant.     The  jury  found  a  verdict  for  the  plaintiff.     A  motion 
for  a  new  trial  was  moved  for,  on  the  ground  of  misdirection  as  to 
the  law.     The  motion  was  overruled,  and  from  the  judgment  ren 
dered  defendant  appealed. 

Henderson,  J.  I  am  of  opinion  that  the  law  was  correctly  laid 
down  by  the  presiding  judge,  in  his  charge  to  the  jury  :  for,  how 
ever  much  we  may  now  regret  that  the  act  of  1784  was  not  con 
strued  as  a  statute  of  frauds,  avoiding  all  parol  gifts  of  slaves,  as 
well  between  the  parties,  as  wheie  creditors  and  purchasers  were 
concerned,  it  is  now  too  firmly  settled,  by  a  uniform  train  of  de 
cisions,  to  be  even  questioned,  that  as  between  the  parties,  and 
volunteers  under  them,  the  transfer  is  good,  and  that  it  is  void 
only  where  creditors  and  purchasers  are  concerned  ;  nor  can  we 
adopt  the  expedient  pressed  upon  us  from  the  bar,  that  we  would 
in  this  case  give  to  the  act  what  we  consider  to  be  its  true  con 
struction,  as  there  has  been  no  decision  that  a  fraudulent  or  color- 


G4  SLAVERY. 

able  purchaser  was  not  within  the  prohibition  of  the  act.  This 
would,  to  our  understanding,  be  something  like  a  subterfuge  ;  the 
protection  of  the  act  is  afforded  to  a  purchaser  on  account  of  his 
merits,  not  his  demerits.  We  cannot  perceive  the  situation  of  a 
fraudulent  and  colorable  purchaser  to  be  better  than  that  of  the 
person  from  whom  he  purchased.  Can  title  be  strengthened  by 
adding  a  fraudulent  link  to  the  chain  ?  It  appears  to  me,  that  if 
either  is  to  be  preferred,  it  is  the  original  party ;  if  Strudwick 
therefore  was  a  fraudulent  or  colorable  purchaser,  (and  this  fact 
was  properly  left  to  the  Jury,)  he  and  his  voluntary  representatives 
stand  in  the  situation  of  the  husband,  Hargrove,  from  whom  he 
purchased  ;  and  as  the  parol  gift,  if  made,  was  binding  upon  Har 
grove,  it  is  binding  on  the  defendant  A  she,  who  is  a  volunteer 
under  Strudwick.  Judgment  for  the  plaintiff. 

6. 

MARY  CHOAT  v.  JOHN  WRIGHT.  June  T.  1830.  2  Devereaux's 
North  Carolina  Rep.  289.;  GOODWIN  v.  MORGAN,  ;  1  Stew 
art's  Rep.  278. ;  1  Hay  wood's  Rep.  289. 

A  sale  of  a  Trover  for  a  slave.     The  defendant,  under  the  general  issue, 

slave    ac-  ~ave  jn  evidence  that  an  execution  against  one  Isham  Choat,  came 

by™deiived  to  his  hand,  as  sheriff,  under  which  he  seized  the  slave,  and  the 

"and"  trans'  only  question  was,  whether  the  defendant  in  this  execution  had  a 

fers  the  ti-  titje  to  faQ   g|ave      Qn  the  evidence  it  appeared  that  the  slave  had 

withstand-  been  the  property  of  one  Sybert  Choat,  and  was  by  the  plaintiff, 

o?  sale  b  is  as  his  executrix,  set  up  at  public  auction,  and  stricken  off  to  Isham 

executed,  c/w>ai  ai  QQQ  dollars  ;  that  the  slave  was  delivered  to  the  vendee  ; 

nor  any  .  .  . 

memoran-    kut  no  bill  of  sale,  nor  any  memorandum  of  the  sale  in  writing, 
cdoUilu4ftthe  was  executed  by  the  plaintiff.     His  honor  charged  the  jury,  that 
thgenepdarties  the  sale  of  a  slave,  accompanied  with  delivery  of  possession,  passed 
thereto.       ^Q  title,  notwithstanding  the   act  of  1819.      Rev.   ch.  1016.     A 
verdict  was  returned  for  the  defendant,  and  the  plaintiff  appealed. 
Ruffin,  J.     We  should  lend  a  ready  ear  to  any  plausible  argu 
ment,  tending  to  prove  that  this  case  is  within  the  statue  of  frauds  ; 
(Act  of  1819.     Rev.  ch.  1016.  ;)  for  we  feel  that  all  the  mischiefs 
are  as  apt  to  arise  out  of  executed,  as  executory  contracts.     But 
the   words  are  too  strong  and  plain  to  be  got  over.     We  think  it 
extremely  probable,  that  the  draftsman  considered,  when  he  put 
lands  and  slaves  on  the  same  footing,  that  he  required  all  contracts 
respecting  each  to  be  in  writing.     If  he  did,  it  was  a  great  mistake. 
However  the  words  of  the  act  may  be  construed,  if  applied  to 


OF  TITLE  TO  SLAVES.  65 

slaves  alone,  they  cannot  embrace  executed  contracts,  when  applied 
to  both.  The  act  says,  that  "  all  contracts  to  sell  orconvey  lands  or 
slaves  shall  be  void  and  of  no  effect,  unless  such  contract,  or  some 
memorandum,  or  note  thereof,  be  put  in  writing,  and  signed  by 
the  party  charged,  except  contracts  for  leases  not  exceeding 
three  years."  The  question  is,  what  sort  of  contracts  is  here  meant] 
Certainly,  only  such  a  contract  respecting  slaves  is  within  the  act 
as  would  also  be  within  it  if  it  respected  land  ;  for  the  two  subjects 
are  placed  side  by  side.  It  is  perfectly  clear,  that  executory  con 
tracts  alone  can  be  meant  when  land  is  the  subject.  For  before  that 
time,  a  conveyance  of  freehold  land  could  be  by  deed  only,  and  it 
is  absurd  to  talk  about  "  a  note  or  memorandum  in  writing,"  as  a 
thing  that  can  pass  such  lands.  In  relation,  therefore,  to  realty, 
not  only  the  words  of  the  act,  "  a  contract  to  sell,"  but  the 
state  of  the  law  before,  restrains  the  statute  to  executory  contracts. 
This  ties  us  down,  against  our  wills,  to  the  same  construction  as  re 
gards  slaves.  Therefore,  a  sale  of  slaves  by  parol,  that  would  have 
been  good  before  the  statute  is  still  good.  We  are  aware  of  the  great 
inconveniences  that  will  arise  from  this  construction  ;  and  that  has 
made  us  very  reluctant  to  adopt  it.  For  the  same  fraud  and  per- 
j  ury  will  be  practised  in  the  dispute,  whether  the  contract  was  one 
"  to  sell,"  or  "of  sale,"  as  in  ascertaining  the  particular  terms  of  a 
contract  to  sell,  and  thus  all  the  benefits  intended  by  the  legisla 
ture  be  defeated.  But  the  framing  of  the  act  compels  us  to  pro 
nounce  the  judgment  we  do.  Judgment  affirmed. 

7. 

MORROW  et  al.  v.  WILLIAMS.     Dec.  T.  1831.     3  Devereaux's 
North  Carolina  Rep.  263. 

Detinue  for  a  slave.     A  verdict  was  taken  for  the  plaintiff,  sub-  A  gift  of 
ject  to  the  opinion  of  the  court,  upon  the  following  case  :  madefbyan 

Jemima  Bradshaw,  on  the  30th  of  December,  1820,  signed  an  instrument 

not    under 

instrument,  of  which  the  following  is  a  copy  :   "  To  all  people  to  seal,  and 
whom  these  presents  shall  come,  I,  Jemima  Bradshaw,  for  and  in  panied  by 


consideration  of  the  natural  love  and  affection  which   I   have  and  de!lvery,  is 

void. 

bear  to  my  beloved  son-in-law  Arthur  Morrow,  and  my  daughter 
Jemima  Morrow,  and  for  divers  other  good  considerations  me 
hereunto  moving,  have  given  and  granted,  and  by  these  presents 
do  give  and  grant,  unto  the  said  Arthur  and  Jemima  Morrow,  my 
negro  boy  Abraham,  &c.,  (mentioning  several  articles  of  personal 
paoperty,)  to  their  use,  and  to  use  singularly  to  them,  and  the  chil- 


66  SLAVERY. 

dren  of  Jemima  Morrow,  that  she  may  have  by  her  said  husband, 
to  enjoy  full  power  and  possession  of,  after  my  death,  to  have  and 
to  hold,  and  enjoy  all  and  singularly  the  said  negro  boy  Abraham, 
&c.,  unto  the  said  Arthur  arid  Jemima)  and  their  children.  In 
witness  whereof,  &c. 

"  JEMIMA  BRADSHAW. 

"  Signed  in  presence  of." 

The  plaintiff  was  the  wife  of  Morrow,  and  the  children  born 
at  the  date  of  the  paper  above  set  forth. 

Per  Cur.  Hall,  J.  Several  valid  objections  occur  to  the  claim 
of  the  plaintiffs.  The  first  is,  that  the  gift  is  not  established  by  a 
deed,  or,  in  its  absence,  by  evidence  of  a  delivery:  the  writing  in 
troduced  and  relied  upon,  not  being  under  seal,  is  nothing  more 
than  the  declaration  of  Jemima  Brachhaw,  that  she  gave  the  negro 
to  her  daughter  and  son-in-law,  but  there  having  been  no  deli 
very,  no  title  vested  in  them  ;  and  there  being  no  valuable  conside 
ration,  no  right  of  property  passed  from  her.  Judgment  for  the 
defendant. 

8. 
WILLIAMS  et.    al.   v.  HORTON.     May   T.    1826.     16   Martin's 

Louisiana  Rep.  464.  467. 

A  donation       This  suit  was  commenced  for  the  purpose  of  rescinding  a  deed 
withoaTes-  °^  S^  °^  slaves,  on  account  of  legal  informality  in  its  execution. 


obtained  a  verdict  and  judgment  thereon,  declaring 
that  the  donation  was  void,  and  the  defendant  appealed. 

Per  Cur.  JHathcws,  J.  The  reasons  why  our  legislature,  in 
conformity  with  the  legislation  of  France,  should  have  embar 
rassed  donations  with  so  many  forms,  are  not  very  palpable  and 
evident  to  the  minds  of  men  who  are  only  conversant  with  ordinary 
affairs  of  human  life  ;  in  truth,  they  cannot  be  considered  as  very 
conspicuous  and  imposing  on  those  learned  in  the  law.  Why 
honest  generosity  should  be  thus  trammeled,  is  not  easy  to  account 
for  :  sed  ita  lex.  In  resorting  to  Toullier's  Commentary  on  the 
Code  Napoleon,  it  is  discovered  that  tradition,  ?.  e.  delivery  de 
mmu  in  manum,  of  moveables,  according  to  the  decisions  of  the 
courts  of  justice  in  France,  dispenses  with  many,  if  not  all  the 
forms  prescribed  by  the  Code  for  the  perfection  of  donations.  See 
5  Toullier,  p.  181  —  184.  Want  of  estimation  of  the  property 
given  is  cured  by  delivery  of  moveables.  The  48th  article  of  our 
late  civil  Code  is,  verbatim,  that  of  the  948th  article  of  the  French 


OF  TITLE  TO  SLAVES.  67 

Code,  except  that  ours  provides  expressly  in  the  same  manner  for 
the  donation  of  slaves,  and  requires  that  an  estimate  should  be 
made  of  them,  and  signed  by  both  donor  and  donee,  £c.  There 
can  be  no  doubt,  according  to  the  interpretation  giver*  to  this  law 
by  French  jurists,  and  which  we  believe  to  be  correct,  of  tradition 
of  moveables  obviating  the  invalidity  of  a  donation,  which  would 
otherwise  take  place  for  want  of  an  estimate.  The  only  question 
which  remains  for  examination  is,  whether  the  delivery  of  slaves, 
under  a  deed  of  grant,  made  and  accepted  in  due  form,  will,  agree 
ably  to  general  rules  of  property  in  this  state,  produce  the  same 
effect  1  The  principle  reason  which  seems  to  have  influenced  the 
opinions  and  decisions  of  those  who  have  considered  tradition  of 
moveable  property,  made  in  pursuance  of  a  will  to  give,  as  suffi 
cient  to  cure  all  defects  of  form  in  donations,  is,  that  possession  of 
this  kind  of  property  is  held  to  be  equivalent  to  title,  or  in  other 
words,  to  be  evidence  of  title.  But  according  to  our  laws  in  rela 
tion  to  titles  by  which  property  is  held,  a  written  instrument  is  re 
quired  in  order  to  transfer  slaves  from  one  proprietor  to  another  ; 
and  when  the  evidence  offered  in  support  of  title  to  them  is  an  act 
of  donation,  to  give  it  validity,  it  must  appear  clothed  with  all  the 
formalities  required  by  law,  and  sanctioned  by  an  authentic  deed. 
Mere  possession  is  not  evidence  of  title.  In  the  present  case,  the 
notarial  act  is  invalid,  for  want  of  the  estimate  required  by  the  code, 
and  is  therefore  no  evidence  of  title  in  the  donee,  because  dona 
tions  cannot  be  supported  by  any  instrument  inferior  to  authentic 
acts.  In  this  species  of  contract  forms  appear  to  assume  the 
place  of  substance.  From  the  foregoing  review  of  the  case,  there 
can  be  no  difficulty  in  perceiving  the  difference  in  the  legal  princi 
ples  which  govern  it,  from  those  on  which  the  decisions  were  made, 
relative  to  synallagmatic  contracts,  relied  on  by  the  counsel  for 
the  appellants.  Judgment  affirmed. 

9. 

ATKINSON   v.    CLARKE.     Dec.  T.  1831.     3  Devereaux's  North 
Carolina  Rep.  17J. 

Rvjfin,  J.,  delivering  the   opinion  of  the  court  in  this  case,  de-  Ru]e  as  to 
cided,  that   an  assignment  of  slaves  not  under  seal  is  void,  where 


there  is  no  delivery   of  possession,  or   price   paid.      In  Kentucky,  N.orth  Cai> 
no  parol  gift  of  a  slave  could  be  made  prior  to  the  act  of  1787. 
By  that  act  a  parol  gift  was  valid  if  accompanied  by  possession. 
But  even  under  that  act  the  possession  of  the  donee,  is  not  valid 


68  SLAVERY. 

against  the  creditors  of  the  donor,  or  purchasers  for  a  valuable 
consideration,  until  the  donor  shall  have  been  in  possession  three 
years. 

10. 
BUTT  v.  CALDWELL.     Fall  T.     4  Bibb's  Rep.  459. 

When  hir-  Held  by  the  court,  that  the  sale  of  a  negro  while  she  was  hired 
to  another,  transfers  the  possession,  as  well  as  right  of  property  ; 
and  the  bill  of  sale  is  not,  as  to  creditors,  fraudulent  per  se,  be 
cause  possession  was  not  actually  given  to  the  purchaser  at  the 
time.  The  slave  at  the  time  of  the  sale  was  hired  out,  but  the 
owner  might  nevertheless  sell  him.  The  right  to  dispose  of  pro 
perty,  though  not  in  the  possession  of  the  vendor,  but  which  was 
held  under  him,  was  decided  in  Bullock  v.  M'Calla,  2  Bibb's 
Rep.  289.  If,  then,  the  right  may  be  thus  transferred  in  the  slave, 
the  subsequent  holding  by  the  person  who  had  hired,  ought  not  to 
be  treated  as  the  possession  of  the  seller. 

11. 

BARFIELD    v.    HEWLET.     June    T.    1832.     4   Louisiana 

Sa,ebyan  Rep.    118. 

auctioneer 

of  a  slave  Held  by  the  court,  Martin,  J.,  that  the  purchaser  of  a  slave  at 
auction  acquires  no  title,  if  his  vendor  be  without  authority  to  sell. 


vests  no  ti- 

tie.  12 

WILLIAMS  v.  MOORE.     Oct.  T.  1811.     3  Munf.  Rep.  310. 

Where    a 

sold6  on™  The  declaration  averred,  that  the  defendant  entered  into  a  ver- 
Aatdlif°the  ^  agreement  with  the  plaintiff  to  purchase  a  negro  woman  slave, 
buyer  did  named  Peg,  for  $300,  upon  condition,  that  if  the  defendant  did 
him,  to  re-  not  like  her,  he  was  to  return  her  in  two  or  three  weeks  ;  and  in 
^specified  pursuance  of  the  said  agreement,  the  defendant  received  the  said 
•ime'th  and  ^e^J  an(^  w^^e  *n  his  possession,  she  was  injured  by  being  frost 
mean  bitten,  and  rendered  of  little  value  ;  and  thereupon  the  defendant 
Save  \se  refused  to  keep  the  said  negro,  or  to  compensate  the  plaintiff. 
tenSt  the  ^he  counsel  f°r  the  plaintiff  moved  the  court  to  instruct  the 
buyer  may  jury,  "  that  if  they  were  of  opinion  that  the  negro  mentioned  in 
slave,  and  the  declaration  was  purchased  by  the  defendant  of  the  plaintiff, 
if  "he1  took  uPon  tnat  condition;  that  if  after  keeping  her  two  or  three  weeks, 

such    care  he   ^^  not  like  her,  he  was  at  liberty  to  return  her  ;  that  in  such 
as  a  man  of 

prudence     event,  the  defendant,  to  entitle  him  to  the  benefit  of  the  contract, 
own?  °     "  was  bound  to  return  her  in  the  same  condition  he  received  her, 


OF  TITLE  TO  SLAVES.  69 

even  although  the  injury  she  sustained  was  not  imputable  to  the 
neglect  of  the  defendant."  But  the  court  refused  to  give  the  jury 
such  instruction,  and  instructed  them,  "  that  no  bailee  is  responsi 
ble  for  accident,  unless  it  be  expressly  agreed  between  the  parties 
to  the  contract,  that  he  shall  be  so  liable  ;  that  when  the  bailee 
alone  is  benefited  by  his  contract,  he  is  bound  to  slight  neglect  ; 
and  that  slight  neglect  is  the  omission  of  that  diligence  which  very 
circumspect  and  thoughtful  persons  use  in  securing  their  own 
goods  and  chattels."  To  which  opinion  of  th  e  court,  "  refusing 
the  instructions,"  the  plaintiff  filed  a  bill  of  exceptions.  Verdict 
and  judgment  for  the  defendant.  Plaintiff  appealed. 

At  a  subsequent  day  the  president  pronounced  the  court's  opi 
nion,  that  the  judgment  be  reversed,  the  verdict  set  aside,  and  the 
cause  remanded  to  the  superior  court  of  law,  with  discretion  of 
that  court  to  instruct  the  jury,  that,  "  if  the  injury  to  the  slave 
complained  of  was  not  imputable  to  the  neglect  of  the  appellee,  he 
would  not  be  responsible  therefor,  unless  he  expressly  agreed  to  be 
so  liable,  and  that  as  no  such  agreement  is  charged  to  have  been 
made,  he  is  only  bound,  according  to  the  present  declaration,  for 
ordinary  care  of  the  slave  in  question  ;  that  is,  such  care  as  any 
man  of  common  prudence,  and  capable  of  governing  a  family, 
takes  of  his  own  concerns,  and  that  he  is  answerable  for  ordinary 
neglect  only." 

13. 

HARPER  v.  DESTREHAN.  April  T.  1824.  14  Martin's  Louisiana 

Rep.  389. 

Per  Cur.    Porter,  J.     The  plaintiff  sued  to  recover  a  female  slave,  The 
who  had  been  illegally  and  forcibly  taken  out  of  his  possession.  -Jjf  ^ 
The  judge  below  decreed  he  should  recover,  but  condemned  him  negro  is 
to  pay  the  price  of  the  negro,  because  she  had  been  stolen,  and  tied  to  de- 
purchased  by  the  defendant  at  public  auction.    Both  parties  appealed 


from  this  judgment.     The  evidence  proves  the  identity  of  the  slave,  the  lawful 

that  she  was  part  of  the  estate  of  one  William  Burland,  deceased  ; 

and  came  into  the  possession  of  the  plaintiff  as  guardian  to  Wil 

liam  Burland,  jun.     The  title  under  which  defendant  claims   is  of 

a  date  previous  to  this,  and  nothing  shows  any  right  in  the  person 

from  whom  it  emanated.     The   plaintiff,  therefore,  is  entitled  to 

recover,  and  the  only  question  which  remains  to  examine,  is,  whe 

ther  he  must  reimburse   the  defendant  the  price   he  has  paid  for 

her.      His  obligation  to  do  so  has  been  contended  in  this  court  to 


70  SLAVERY. 

result  from  the  provision  in  the  code,  which  declares,  that  things 
moveable  may  be  prescribed  for  in  three  years,  unless  they  have 
been  stolen  ;  and  even  if  they  have  been  stolen,  the  owner  cannot 
recover  them  without  paying  the  possessor  the  price  which  they 
cost  him,  provided  he  bought  them  at  a  public  market,  fair,  or  at 
a  public  auction.  Civil  Code,  488.,  art.  74,  75.  Slaves,  by 
the  laws  of  this  country,  are  considered  as  immoveable,  not  move- 
able  ;  therefore,  the  above  rule  does  not  apply  to  them.  The  rea 
son  upon  which  that  rule  was  established,  also  excludes  the  idea  of 
its  having  any  application  to  this  kind  of  property.  It  does  not 
pass  by  delivery,  but  by  writing,  and  the  purchaser  should  look  to 
title,  and  not  to  possession,  as  evidence  of  ownership.  It  is  there 
fore  ordered,  adjudged,  and  decreed,  that  the  judgment  of  the  dis 
trict  court  be  annulled,  avoided,  and  reversed  ;  and  it  is  further 
ordered,  adjudged,  and  decreed,  that  the  plaintiff  recover  of  the 
defendant  the  slave  claimed  in  the  petition,  with  costs  in  both 
courts. 

14. 

DUPREE  v.  HARRINGTON.  Nov.  T.  1824.    1  Harper's  Rep.  391. 

Where  a        Trover  for  a  horse.     Where  the  plaintiff  agreed  to  sell,  and 
personal  °    actually  delivered  a  horse,  with  a  stipulation  in  the   written   con- 

property      tract  that  the  right  of  property  should  remain  in  him,  and  not  pass 
conveys  to  r 

the  vendee  to  the  vendee    until  half  the   consideration  should  be  paid,  the 
d£ion  of""  court  held,  that  until  the  payment   according  to  the  contract,  the 


^d  right  of  property  in  the  horse  remained  in  the  plaintiff. 
time,  with       Per.  Cur.      Gantt,  J.     The  possession  of  a  chattel   is  in  law 

a  stipula-  ..  ,       .    .  . 

tionthatthe  pnmajacie  evidence  that  it  is  accompanied  with  the  right  to  property  ; 
property  is  but  tne  presumption  may  be  rebutted  by  higher  and  better  evidence. 

to    remain  [  hold  it  to  be  a  correct  and  well  established   principle,  that  the 

iu  the  ven 

dor    till       owner  of  a  chattel  may  make  a  qualified  contract  respecting  it, 

a  sale"f  '     an^  m  Par'ting  with  the  possession,  still  retain  his  right  of  property. 

the  proper-  jt  js  tne  case  in  bailments,  where  the  possessor  has  only  a  qualified 

vendeo,       right,  the  absolute  right  being  in  the  bailor.     So,  a  sale  may  be 

perform-      absolute  or  qualified,  and  the  seller  may  secure  himself  by  taking 

pSat!on8tl"   a  mor*oane   °f   tne   thing  sold,  and  the   lien  will  attach    on  the 

conveys  no   mortgaged  goods  into  whose  hands  soever  they  may  come.     The 

vendee  has  no  right  of  property  in  the  horse  until  payment  ;  his 

sale,  therefore,  to  Harrington,  the  defendant,  with  notice  of  the 

non  payment,  passed  no  title,  and  the  plaintiff  must  recover. 


OF  TITLE  TO  SLAVES.  71 


(D.)  BY  GIFT    TO  CHILDREN    IN    CONSIDERATION    OF    MARRIAGE    ; 

and  see  tit.  "POSSESSION." 

1. 

MOORE'S    ADM'R  v.  DAWNEY  et  al.    Oct.    1808.     3   Hen.   & 

Munf.  127. 

The  plaintiff's  intestate,  intermarried  with  the  daughter  of  Zacha-  When  they 
riah  Burnly,  Dec.  1795,  who  was  a  man  of  large  fortune  ;  and  heW  alTgift 

immediately  after  the  marriage,  Burnly  sent  the  slaves  in   the   de-  in  conside 

ration  of 
claration  mentioned  to  his   son-in-law,  in  whose  possession  they  marriage. 

remained  until  his  death,  in  April,  1795  ;  and  afterwards  they  were 
seized  upon  execution,  as  the  property  of  Zachariah  Burnly. 

The  court  held,  that  where  a  father,  possessed  of  a  large  fortune, 
sent  his  slaves  immediately  after  marriage  of  one  of  his  daughters 
to  her  husband,  where  they  remained  until  the  husband's  death, 
which  happened  two  years  and  four  months  after,  they  would  pre 
sume  the  slaves  were  a  gift  in  consideration  of  marriage. 

Per  Tucker,  J.  It  appears  to  me  that  the  delivery  of  the 
negroes  to  the  husband  immediately  after  the  marriage,  may  well 
be  presumed  to  have  been  in  consideration  of  marriage. 

2. 
TAYLOR  v.  EUBANKS.    Spring  T.  1821.  3  Marshall's  Rep.  239. 

Detinue  for  a  slave.     It  appeared  that  George  G.  Taylor,  on  The  mere 
the  marriage  of  his  son,  the  appellant,  made  a  parol  gift  of  the 


slave  in  question  to  him,  and  in  about  one  year  the  slave  was  taken  parent  be- 

.  .  mg  mdebt- 

out  of  his  possession  upon  an  execution  issued  against  the  father,  who  ed  at   the 

was  indebted  to  the  execution  creditor  in  a  considerable  sum  at  mTkes  ean 


the   time   of  the  gift.     The  court  instructed  the  jury,  that  if  they  advance:  . 

_  •>    ment  to  his 

believed,  from  the  evidence,  that  the  father  was  indebted  at  the  ch\\d,  does 

time  of  the  parol  gift  of  the  slave  to  the  son,  the  gift  as  to  the  exe-  se°lf,  render 

cution    creditor  was  void  in  law.      Verdict  for  defendant;    and  *0eid?  lftit  ia 

Taylor  appealed.  the    intent 

to  defraud, 

Per  Cur.  Oicsley,  J.     II  by  the  instruction  given  it  was  intended  that  viti- 
by  the  court  to  decide,  that  under  the  statute  against  fraudulent  g^ 
conveyances  generally,  the  mere  circumstance  of  a  father  being 
indebted  at  the  time  of  making  the  conveyance,  does,  within  itself, 
as  matter  of  law,  render  a  gift  made  to  the  son,  in  consideration  of 
natural  love  and  affection,  void  as  to  creditors,  we  entertain  no 
doubt  the  instruction  cannot  be  sustained.     The  statute  of  this 


72  SLAVERY. 

country,  which  was  taken  from,  and  contains,  in  substance,  the 
provisions  of  the  1 3  and  27  Elisabeth,  no  doubt  makes  void  all 
conveyances  made  with  an  intention  to  hinder,  delay,  or  defraud 
creditors  ;  but  it  is  the  fraudulent  intent  with  which  the  conveyance 
is  made,  and  not  the  circumstance  of  the  alienor  being  at  the  time 
indebted,  that  makes  the  conveyance  void. 

From  his  being  indebted,  an  intent  to  defraud  may  be  presumed ; 
but  it  is  a  presumption  which  may  be  repelled  by  other  evidence, 
and  which  should  be  made  by  the  jury,  and  not  the  court.  There 
may  be  cases  where,  from  particular  facts,  it  would  be  proper  for 
the  court  to  infer  a  fraudulent  intent  ;  but  those  are  cases  where, 
from  the  facts,  the  law  itself  implies  the  intent,  and  allows  the  in 
troduction  of  no  evidence  to  repel  the  implication.  But  the  cir 
cumstance  of  being  indebted  is  not  such  a  fact  from  which  the  law 
implies  an  intention  in  the  person  conveying,  in  consideration  of 
natural  love  and  affection  to  defraud  his  creditors. 


TAYLOR,  EX'R  OF  ROWLEY,  v.    WALLACE    AND  WIFE.    Nov. 
T.   1786.     4  Call's  Rep.  92. 

within  the  ^ne  quest'on  was>  whether  a  verbal  gift  of  slaves  to  an  unmar- 
statute.  ried  woman,  to  whose  husband  the  slaves  upon  his  marriage  were 

delivered,  and  in  whose  possession  the  same  remained  until  his 

death,  four  years  afterwards,  be  within  the  statute  for  preventing 

fraudulent  gifts  of  slaves. 

The    court  of  appeals   certified  their  opinion  to  be,  that   the 

said  gift  was  void,  and  within  the  statutes  for  presenting  fraudulent 

gifts  of  slaves. 

4. 

BYRD  v.   WARD.  June   T.  1827.     4  M'Cord's  Rep.  228. 

Sending  a       Trover  for  a  slave.     Allen  married  the  daughter  of  Mr.  Bvrd, 

slave  home  f  J 

with  a  mar-  and  when  about  moving  her  to  his  own  house,  Mrs.  Byrd  told  two 
ter,  amf  negro  women  to  go  home  with  Mrs.  Allen,  and  assist  her  ;  one  of 
Eer"?"1™!  ^le  ne£ro  women  returned  soon  after,  and  the  other  remained 
main  there  four  years  in  Allen's  family,  and  was  considered  by  the  neighbor- 
is  a  gift  of  hood  as  the  property  of  Allen.  Allen  becoming  embarrassed, 


Mr.    Byrd  executed    a  deed  of  trust  to   the  plaintiff  of  the  ne- 
band.          groes,  for  the  use  of  his  daughter,  Mrs.  Allen.     The  negroes  were 
sold  by  an  execution  creditor  of  Allen.     Verdict  for  plaintiff,  and 
motion  for  a  new  trial. 


OF  TITLE  TO  SLAVES.  73 

Per  Cur.  Aotf,  J.  Permitting  negroes  to  go  home  with  a 
daughter,  on  her  marriage,  has  always  been  considered  as  prima 
facie  evidence  of  an  unconditional  gift ;  and  the  only  question  now 
for  our  consideration  is,  whether  this  case  is  an  exception  to  the 
general  rule.  One  of  the  slaves  remained  four  years  in  Allen's 
family.  Such  a  length  of  possession  would  give  a  statutory  right, 
and  would  he  conclusive  evidence  of  the  intention  of  the  parent. 
And  after  that  period  the  father  of  Mrs.  Allen  could  not,  by  a 
voluntary  settlement,  defeat  the  rights  of  creditors.  The  infer 
ence  from  the  facts  is,  that  the  property  must  be  considered  as 
belonging  to  Allen,  and  subject  to  the  payment  of  his  debts.  I 
am  of  opinion,  that  the  verdict  in  this  case  is  contrary  both  to  law 
and  evidence,  and  that  a  new  trial  ought  to  be  granted. 

5. 

CLUNG  v.  LOCKART.    June  T.  1827.     4  M'Cord's   Rep.    251 

Trover  for  a  slave.     The  plaintiff  proved  the  defendant  sent  his  And   it  is 
slave  to  plaintiff's  house  about  a  year  after  he  had  married  the  de-  wSe^1 
fendant's  daughter,  where  the  slave  remained  until  the  death  of  the  the  slav.e 
daughter,  when  the  defendant  took  the  slave  away. 

The  court  charged  the  jury  that  the  rule  of  law  was,  that  where 
a  parent  suffered  property  to  go  with  a  child  upon  marriage,  a  sent" 
gift  was  implied  ;  but  it  did  not  extend  to  this  case.  Here  the 
property  went  into  the  possession  of  the  son-in-law  a  year  after 
marriage.  Verdict  for  defendant,  and  the  plaintiff  appealed.  The 
court,  Colcock,  J.,  held,  that  the  charge  of  the  court  was  wrong, 
and  a  new  trial  must  be  granted. 

6. 
MAHAN    v.    JAMES.      Spring    T.    1810.     2    Bibb's   Rep.   32. 

Held  by  the  court,  Clark,  J.,  that  a  <?ift  of  a  slave,  accompanied  A.validgifl 

i  .          .  ,.  ,  is  irrevoca- 

by  possession,  is  valid,  and  cannot  be  invalidated  by  a  subsequent  ble- 
devise  of  the  donor.     A  gift  of  a  slave,  accompanied  with  actual 
possession,  vests  in  the  donee   an  absolute  property,  unless  it  be 
done  with  an  intention  to  defraud. 


10 


74  SLAVERY. 


(E.)        BY    THE     STATUTE    OF    LIMITATIONS.* 
1. 

HARDESON  v.  HAYS.     March  T.  1833.     4  Yerger's  Rep.  507. 

This  was  an  action  of  detinue,  brought  by  Samuel  Hays  against 
Although,  -„       ,     , 

by  the  sta-  the  plaintiff  in  error,  Hardeson,  to  recover  two  slaves,  Rachel  ana 
Northf  Ca-  her  child,  which  Hays  claimed  as  his  property.     It  appeared  from 


the  evidence,  that  the  plaintiff  below  was  the   original  owner  of 
Saves  must  tne  slaves  ;   that  William  Hays,  under  whom  the  defendant  below, 
or  writing,  Hardeson,  claimed,  married  the  daughter  of  the   plaintiff,  Samuel 
e-  Hays,  in  North   Carolina,  in  1811  ;  that  between   that   year  and 


lyvoid;       1818,  several  slaves  had  been  sent  by  Samuel  Hays  to  William 

yet,  where  ._  1010*1,         •  i    r> 

thegiftwas  Hays,  which  were  returned  ;  that  in  January,  1818,  the   girl 

andPihedo-  chel  was  sent  in  exchange  for  one  previously  sent  ;  that  from  1818, 
nee  had       ^jj  William  Hays  moved  to  Tennessee,  in  1826,  Rachel  remain- 

possession^  _ 

claiming  e(j  in  his  possession,  except  a  few  weeks,  now  and  then,  when  she 
tyea?  hSTr~  was  at  Samuel  Hays'  ;  that  William  Hays  claimed  her  as  his  own, 
tuTofyther~  and  exercised  acts  of  ownership  over  her  ;  that  when  he  removed 
gift  more  to  Tennessee  he  carried  Rachel  with  him  ;  that  she  continued  in 
years,  it  his  possession  until  he  sold  her  to  Hardeson,  which  was  nearly  five 
that  thed'ti-  years  ;  but  Hardeson  did  not  have  her  in  possession  three  years 
the™  before  this  suit  was  brought  against  him.  Hardeson  gave  William 
vested  in  Hays  three  hundred  and  thirty  dollars  for  Rachel,  her  child  not 
oHimT-  then  being  born.  The  laws  of  North  Carolina,  which  were  read 


act 


in  evidence,  required  that  the  gift  should  be  in  writing,  or  it  was  abso- 
quently        ]utely  void  to  all  intents.     The  jury,  under  the  charge  of  the  court, 
purchaser    returned  a  verdict  for  the  plaintiff.     Such  parts  of  the  charge  as 
n  him.    t^e  court  deemed  material  or  necessary  to  notice,  are  contained  in 
the  opinion  delivered  by  Judge  Green. 


*  The  statutes  of  limitations,  in  reference  to  this  species  of  property,  are  various  in 
the  different  states  where  such  property  exists.  In  some  of  the  states  the  limitation 
is  three  years,  in  others  it  is  five.  But  in  all  of  them  the  general  principles  applicable 
to  the  possession  of  chattels,  prevail.  An  adverse  possession  under  the  statute  for  the 
time  limited,  gives  the  possessor  a  valid  title,  which  he  may  avail  himself  of,  in  an 
action  against,  him  to  recover  the  possession  by  a  plea;  or,  if  disposessed,  may  recover  the 
slave  on  the  strength  of  the  title  gained  by  force  of  the  statute.  And  where  the 
possession  is  not  adverse,  and  consequently  the  statute  does  not  apply,  a  possession  of 
twenty  years  as  loanee  or  mortgagee  will  give  a  title.  The  court  will  consider  the 
absolute  right  to  the  property  is  in  the  possessor,  by  force  of  the  length  of  possession. 


OF  TITLE  TO  SLAVES  75 

Per  Cur.  Green,  J.  The  Court  in  this  case  charged  the  jury, 
in  substance,  that  if  the  slave,  for  the  recovery  of  whom  this  suit 
was  brought,  was  given  to  William  Hays,  of  whom  defendant  pur 
chased  her,  in  North  Carolina,  by  the  plaintiff,  yet  the  gift  not  be 
ing  by  deed,  proved  and  registered  as  required  by  the  laws  of  that 
state,  it  would  not  pass  the  title,  and  that  the  possession  of  Wil 
liam  Hays  would  be  the  possession  of  the  plaintiff;  so  that  the  sta 
tute  of  limitations  could  not  operate  against  the  plaintiff;  and  that 
if  William  Hays  brought  the  negro  to  Tennessee,  and  had  her  in 
possession  in  Tennessee  more  than  five  years,  and  then  sold  her 
to  the  defendant,  that  neither  the  statute  of  frauds  nor  the  statute 
of  limitations  could  operate  to  confer  a  title,  or  bar  the  plaintiff's 
recover^,  unless  the  defendant  had  the  negro  in  possession  more 
than  three  years  after  his  purchase  from  William  Hays,  in  this 
charge  the  circuit  court  clearly  mistook  the  law.  Although  the 
act  of  North  Carolina  of  1806,  ch.  701.  sec.  1.,  requires  that  a 
gift  of  slaves  should  be  by  deed  proved  and  registered,  yet,  when 
the  parol  gift  of  the  slave  was  made,  William  Hays  held  for  him 
self,  and  not  for  the  plaintiff,  who  had  made  the  gift.  No  trust 
was  created  between  the  parties,  as  would  have  been  the  case 
had  the  slave  been  loaned  ;  but  the  possession  was,  in  law  and  in 
fact,  exclusively  for  himself,  and  adverse  to  all  the  world.  Hav 
ing  thus  an  adverse  possession  in  North  Carolina  and  Tennessee, 
for  ten  years,  the  plaintiff  is  barred  by  the  statute  of  limitations, 
In  Kegler  v.  Mills,  2  Martin  &  Yerger's  Rep.  426.,  this  court  de 
cided,  that  an  adverse  possession,  so  long  as  to  bar  the  plaintiff's 
action  against  the  possession,  vested  in  him  an  absolute  right  to  the 
property.  The  length  of  his  possession,  it  being  adverse,  vested 
in  William  Hays  an  absolute  right  to  the  property,  which  was 
transferred  by  his  deed  to  the  defendant  The  court  therefore 
erred  in  telling  the  jury  that  William  Hays  had  not  such  an  adverse 
possession,  in  favor  of  which  the  statute  of  limitations  could  ope 
rate  ;  and  also,  in  telling  them  the  defendant  could  not  rely 
upon  the  previous  possession  of  William  Hays,  and  that  to  be  pro 
tected,  he  must  appear  to  have  been  three  years  in  possession  of 
the  slave  himself.  Judgment  reversed, 


76  SLAVERY. 

2. 
PARTEE  v.  BADGET  et  al.     March  T.  1833.     4  Yerger's  Tenn. 

Rep.  174. 

Three  In  this  case  the  ancestor  of  defendants  in  error   was  originally 

verle  pos-  the  owner  of  the  s]aves   in   controversy.     The    plaintiff  claimed 

skve°nvesfts  them  by  s'ft  from  hls  father>  and  held  Averse  possession  6f  them 
the  right  of  from  the  year  1821  until  the  year  1827,  when  the  defendants  in 
mtEepo*.  error  retook  them  into  their  possession.  This  suit  was  then  brought 
against  them,  and  the  jury,  under  the  charge  of  the  court,  found  a 
verdict  in  favor  of  the  defendants  in  error.  Upon  which  judgment 
was  rendered.  The  court  was  requested  to  charge  the  jury,  that 
if  the  slaves  in  question  were  more  than  three  years  in  the  adverse 
possession  of  the  plaintiff,  the  defendants  were  barred  by  the  act  of 
limitations,  and  could  not  recover  them  by  law  ;  and  having  regained 
the  possession,  could  not  hold  them  against  the  plaintiff.  The 
court  refused  so  to  charge  ;  but  stated  to  the  jury,  that  the  act  of 
limitations  only  barred  the  remedy,  and  not  the  right,  and  though 
the  defendant  could  not  recover  by  suit,  yet,  if  their  title  was  good 
before  it  was  barred,  they  had  a  right  of  reception  at  any  time  af 
terwards  ;  and  having  got  the  slaves  in  their  possession  after  their 
action  was  barred,  they  thereby  resorted  to  their  first  right,  and 
the  plaintiff  in  such  case  could  not  be  aided  hy  the  statute. 

Per  Cur.  Peck,  J.  The  question  presented  by  this  record 
arises  upon  the  charge  of  the  court.  The  circuit  was  of  opinion, 
that  the  plaintiff  could  acquire  no  right  of  property  in  the  slaves 
by  virtue  of  an  adverse  possession,  sufficient  in  point  of  time  to  form 
a  bar  under  the  act  of  limitations  ;  that  the  remedy  of  the  party 
who  had  the  title  was  only  barred,  and  not  his  right  of  property, 
and  consequently  the  right  of  reception  existed.  In  personal  actions 
to  enforce  executory  contracts,  the  statute  of  limitation  only  ope 
rates  a  bar  upon  the  remedy ;  hence  a  distinct  and  unequivocal 
acknowledgment  will  revive  the  debt.  But  in  relation  to  thectitle 
to  personal  property,  the  rule  is,  and  from  necessity  must  be,  dif 
ferent.  In  such  case,  the  uninterrupted  adverse  enjoyment  for  the 
period  prescribed  by  the  statutes  vests  the  right  of  property  in  the 
possessor,  unless  prevented  by  some  of  the  exceptions  in  the  sta 
tute.  Without  detailing  the  dangerous  consequences  to  society, 
the  violence,  the  prostration  of  all  good  order,  which  would  result 
from  the  adoption  of  a  contrary  doctrine,  it  is  sufficient  for  us  to 
say,  that  the  question  has  been  settled  in  this  state,  in  the  case  of 


OF  TITLE  TO  SLAVES.  77 

Rigler  v.  Miles,  Martin  &  Yerger's  Rep.  The  decision  in  that 
case  is  amply  sustained  by  the  authorities  referred  to.  We  are  of 
opinion  that  the  circuit  court  erred  in  its  charge  to  the  jury  upon 
this  point,  for  which  error  the  judgment  must  be  reversed,  and  the 

cause   remanded. 

• 

3. 

SHELBY  et  al.  v.  GREY.  Feb.  T.  1826.  11  Wheat.  Rep.  3d.  ; 
S.  P.  BRENT  v.  CHAPMAN,  5  Cranch's  Rep.  358.  ;  AULD  v. 
NORWOOD,  5  Cranch's  Rep.  361.  ;  GARTH'S  EX'RS  v.  BARKS- 
DALE,  5  Munf.  Rep.  101.  ;  CARTER  et  al.  v.  CARTER  et 
al.,  5  Munf.  Rep.  108. 

Detinue  for  slaves.     Plea  non  detinet.     Judgment  for  plaintiff.  Five  years' 
Per  Cur.  Johnson,  J.      In  the  case  of  Newby  v.  Blakely,  3  Hen.  of 
&  Munf.  57.,  a  case  strikingly  resembling  this  in  its  circumstances, 

it  was  adjudged  that  a  plaintiff,  in  Virginia,  may  recover  in  detinue,  Virginia, 

r     '  ,,  '  .  upon  which 

upon  five  years   peaceable  possession  of  a  slave   acquired  without  the  posses- 


force  or  fraud.     And  four  months  after  that  decision,  and  obvious- 
ly  without  being  apprised  of  it,  this  court,  in  the  case  of  Brent,  v.  detinue- 
Chapman,  5  Cranch's  Rep.  353.,  maintained  the  same   doctrine  ; 
and  such  a  possession  constitutes  a  good  title  in  Tennessee. 

4. 

SMART    v.    BAUGH.      Spring    T.    1830.      3   J.   J.   Marshall's 

Rep.   363. 

Smart  sued  Baugh,  in  detinue,  for  a  slave  named  Catharine.  And  the 
Smart  claimed  the  slave  in  right  of  his  wife,  a  daughter  of  William 
an  d  Eleanor  Johnson,  by  a  parol  gift  by  her  grandfather,  Peter 
Dopp,  to  her,  of  a  female  slave  named  Nancy,  the  mother  of  Cath-  tucky. 
arine,  in  the  year  1790.  Baugh  claimed  under  the  will  of  Mrs. 
Johnson,  her  grandmother,  and  the  mother  of  Smart's  wife.  The 
slave  Nancy  went  into  the  possession  of  Johnson  and  wife.  Wil 
liam  Johnson  died  in  1819,  and  Mrs.  Johnson,  his  wife,  died  in 
1826.  Johnson  devised  property  to  Smart's  wife  and  other  rela 
tives,  and  Mrs.  Johnson  devised  property  to  them  also,  and  Catha 
rine,  a  child  of  Nancy,  to  the  defendant,  her  grand  daughter,  and 
the  devisees  took  under  each  of  the  wills. 

The  court  charged  the  jury,  that  the  plaintiff  could  not  claim 
under,  and  also  against  the  wills  ;  and  that  if  he  had  accepted,  and 
held  property  under  one  or  both  of  them,  and  to  which  he  had  no 


78  SLAVERY. 

other  valid  right  than  that  he  so  derived,  they  should  find  for  the 
defendant. 

2d.  That  if  those  from  whom  the  defendant  derived  her  claim 
had  been  in  possession  of  Catharine  more  than  five  years  before 
the  institution  of  this  suit,  holding  her  adversely  to  the  claim  of 
the  plaintiff,  his  right  was  barred,  and  he  coulcTnot  recover. 

Per  Cur.  Robinson,  Ch.  J.  As  a  general  rule  of  law,  it  is 
well  settled,  that  a  person  who  claims  the  property  under  a  will, 
cannot  recover  on  a  claim  adverse  to  the  will,  other  property  which 
it  devised  to  another  person.  Therefore,  if  A.  devises  to  B.  pro 
perty  which  belongs  to  C.,  and  also  devises  other  property  to  C., 
C.  must  elect  to  yield  his  right  to  property  devised  to  B.,  or|he 
cannot  hold  that  which  is  devised  to  himself.  Groves  v.  Kenon 
and  Wife,  6  Monroe's  Rep.  635. 

As  to  the  second  point  in  the  charge,  five  years'  uninterrupted 
adverse,  possession  of  a  slave,  not  only  bars  the  remedy  of  the  real 
owner,  but  vests  an  absolute  legal  right  in  the  possessor  ;  and 
proof  of  such  possession  may  show  that  the  claimant  has  no  right 
to  the  slave,  and  cannot  recover.  And  five  years  adverse  posses 
sion  of  a  slave  may  vest  such  a  title  as  will  enable  the  possessor 
to  maintain  action  for  the  slave  ;  the  same  right,  so  acquired, 
may  be  proved  by  him  under  the  general  issue,  in  a  suit  brought 
against  him  for  the  slave,  by  the  person  against  whom  he  had  held 
adversely.  Judgment  affirmed. 

5. 

GARTH'S  EX'RS  v.  BARKSDALE.     5  Munf.  Rep.  101. 

Even  Held  by  the  court,  that  five  years'  peaceable  and  uninterupted 

slaves  are  possession  of  slaves,  under  a  loan,  not  evidenced  by  deed  duly 
loaned.  recorded,  vests  a  title  in  the  loanee,  which  enures  in  favor  of  his 
creditors,  and  cannot  be  devested,  as  to  them,  by  returning  the 
same  to  the  lender,  after  the  five  years  have  elapsed.  And  in  Gay 
v.  Mosely,  2  Munf.  Rep.  543.,  the  court  held,  that  a  slave  lent 
either  before  or  after  the  act  to  prevent  frauds  and  perjuries,  and 
having  remained,  since  the  commencement  of  that  act,  more  than 
five  years  in  the  loanee's  possession,  without  any  demand  having 
been  made  on  the  part  of  the  lender,  must  be  considered  the  abso 
lute  property  of  the  person  so  remaining  in  possession,  as  to  credi 
tors  of,  and  purchasers  under  him. 


OF  TITLE  TO  SLAVES.  79 

6. 
FITZHUGH  v.  ANDERSON  et  al.,     2  Hen.  &  Munf.  289.  308.; 

BOATRIGHT  V.  MEGGS,     4  Muilf.  Rep.   145. 

Held  by  the  court,  that  where  ihe  father,  anterior  to  the  statute  And    the 
of  frauds,  delivered  certain  slaves  to  his  son,  which  were  proved  by  [he  Vedi- 
verbal  evidence,  without  any  deed  in  writing,  to  have  been  lent  for  \°™n°e  Jj|fj 
an  indefinite  period;  and  the  son  having  obtained  the  uninterrupted  be  protect 
possession  for  many  years,   used  the  property  as  his  own,   and 
acquired  credit  on  the  strength  of  the  possession,  in  a  controversy 
between  the  father,  or  volunteer  claimants  under  him,  and  credi 
tors  of,  or  fair  purchasers  from  the  son,  the  father  shall  be  deemed 
to  have  given  him  the  slaves;    and  on  general  principles  of  law  and 
equity,  independently  of  any  statutory  provision,  the  title  of  such 
creditors  and  purchasers  will  be  protected.      The  circumstance 
that  the  father  afterwards,  by  his  last  will  and  testament,  bequeathed 
the  slaves  to  his  son  for  life,  remainder  to  his  children,  makes   no 
difference  in  the  case.  See  the  case  of  Fitzhugh's  Adm'x,  v.  Beale, 
4  Munf.  Rep.  186. 

7. 

NEWBY'S  ADM'R  v.  BLAKE Y,  Oct.  T.  1808.  3  Hen.  &  Munf.  57.  ; 
BRENT  v.  CHAPMAN,  5  Cranch's  Rep.  358. ;  TRAVIS  v. 
CLAIBORNE.  5  Munf.  Rep.  435. 

The  court.    Tucker,  Roane,  and  Fleming,  Js.,  held,  that  where  a  Five  years' 

plaintiff  in  detinue,  who,  after  having  had  five  years  peaceable  pos-  ^sseTs^n 

session  of  a  slave,  acquired  without  force  or  fraud,  loses   that  pos-  &ives  a  t*~ 

session,   may  regain  it  on  the  mere  ground  of  his  previous  posses-  slave,   and 

sion ;  on  the  same  principle  that  a  defendant  may  protect  himself  lost^maybe 

on  that  length  of  possession  under  the  act  of  limitation.     Duval  v.  re£ained- 
Bibb,  3  Call's  Rep.  362. 

8. 

COOK  v.  WILSON'S  ADM'RS.  Fall  T.  1821.  6  Little's  Rep.  437. 
S.  P.  STANLEY  v.  EARL,  5  Little's  Rep.  281.  THOMPSON  v. 
CALDWELL,  3  Little's  Rep.  136. 

Per  Cur.     It  has  been  held  by  high  authority,  that  the  adverse  Even 
possession  of  a  slave  for  five   years  would,  under  the  statute  of  gra^esj  the 
limitations,  not  only  be  a  bar  to  an  action  of  the  former  owner  to  owner- 
recover  the  slave,  but  that  it  would  give  the  possessor  a  title  upon 
which  he  may^  maintain    an   action   against  the    former   owner, 


80  SLAVERY. 

"  » 

3  Hen.  &  Munf.  37.  ;  5  Cranch's  Rep.  358.  ;  and  the  same  doctrine    j 
has  been  recognised  in  Thompson  v.  Caldwell,  3  Little's  Rep.  136. 
And  it  appears  by  the  case  of  Stanley  v.  Earl,  5  Little's  Rep.  281., 
that  the  statute  of  Kentucky  runs  in  the  case  of  a  person  out  of 
.-     the  state  in  possession  of  slaves. 

9. 

MIDDLETON    v.    CARROL.     June   T.  1830.    4  J.    J.   Marshall's 

Rep.    143. 

And  the          Held  by  the  court,  Buckner,  J.,   that  five  years  adverse  posses- 

clple  PapU   ssion  of  slaves  by  the  vendee,  and  those  claiming  under  him,  under 

?onditiona!  ™  unrecorded  conditional  sale  to  vendee,  bars  recovery  of  them  by 

sale.  vendor  ;  nor  will  notice  to  purchaser  from  vendee  of  the  condition 

in  such  unrecorded  conditional  sale,  enable  vendor  to  recover  the 

slave  from  such  purchaser.     See  the  case  of  Withers  v.  Smith,  4 

Bibb's  Rep.  172.;    Craig  v.  Payne,  ibid.  p.   337.;  Ferguson  v. 

White,  1  Marshall's  Rep.  6. 

10. 

COOK  v.  WILSON'S  ADM'R.  Fall  T.  1821.     6  Little's  Rep.  437.  ; 

CHAPMAN  v.  ARMISTEAD,  4  Munf.  Rep.  382. 
Detinue  for  a  slave.     Verdict  for  defendant,  and  motion  for  a 

peaceable      new  trja]a 
possession 

of  a  slave  Per  Cur.  It  appears  by  the  bill  of  exceptions,  that  the  defend- 
than  20  ants  attempted  to  maintain  the  title  of  their  intestate  by  proving, 
whTchahfteer  thatdurin£  the  revolutionary  war,  he  was  an  officer  in  the  ten 
^sseSfon  months'  service  in  South  Carolina  ;  that  an  officer  in  that  service 
and  it  was  was  entitled  to  two  confiscated  slaves  ;  that  the  mother  of  Juda, 
by  raTwho  the  slave  in  controversy,  was  allotted  to  him  as  one  of  those  to 

SeTthe  t['  which  he  was  entitled  ;  and  tllere  being  no  express  proof  that  any 
court  held  other  was  allotted  to  him,  it  was  inferred  that  Juda,  who  was  then 
possession  a  suckling  child,  was  given  to  him  as  the  other  to  which  he  was 
pfainlift  entit]ed.  On  the  other  hand,  it  was  positively  proved  that  Juda, 
ab°ut  the  cl°SG  °f  the  revolutionaiT  war>  wa§  given  to  the  wife  of 


vev- 
dence     of  the  plaintiff,  as  a  compensation  for  her  trouble  in  taking  care  of 

the  other  confiscated  slaves,  and  that  she  then  obtained  possession 
of  her,  claiming  her  as  her  own,  and  continued  to  hold  her  until 
she  intermarried  with  the  plaintiff,  who  has  held  her  as  his  proper 
ty  ever  since,  until  within  less  than  five  years  before  the  com 
mencement  of  this  suit,  when  the  defendant  obtained  possession 
of  Juda,  and  her  children,  born  while  in.  the  possession  of  the 


OF  TITLE  TO  SLAVES.  81 

plai  ntiff.  We  think  these  facts  do  not  warrant  the  verdict  of  the 
jury.  The  possessory  title  of  the  plaintiff  is  conclusive.  Suppo 
sing-  the  defendant's  intestate  to  have  had  agood  title  to  Juda,  hisfail- 
ure  to  assert  that  title  for  a  period  of  het  ween  20  and  30  years,  during 
all  of  which  time  the  plaintiff  and  his  wife  held  possession  of  Juda, 
claiming  her  as  their  own,  must  excite  an  irresistible  presumption, 
that  he  had  parted  with  his  title,  and  that  the  right  of  property  was 
in  the  possession.  The  same  principle  was  decided  by  Judge 
Cranch,  in  Mitchell  v.  Wiison,  May  T.  1827.  Circuit  Court  U.  S., 
Washington,  D.  C.  (MS.) 

11. 

MUXSEL,  ADM'R  OF  SNEED,  v.  BARTLETT.  April  T.  1831. 
6  J.  J.  Marshall's  Rep.  20. 

Thomas  Sneed  died  intestate,  and  administration  was  granted  to  Twenty 
Sarah  Sneecl,  his  widow,  and  to  Achilles  Sneed,  herbrother,  in  1803. 


In  1805  Achilles  Sneed  purchased  from  the  heirs   and  distributees  distributee 

i       .      .  .  ii«  r  wiM  not  °f 

their  interest  in  the  negroes  belonging  to  the  estate  oi  the  intestate,  itself  be 
by  writing.    The  widow  and  administratrix  still  retained  possession  ^rie^to 
of  the  slaves,  and  in  1808  married  Bartlett,  and  died  in  1825.  assentby 

the  admin- 
Achilles  Sneed  died  a  few  months  after,  and  Munsell  administered  istrator. 

on  his  estate,  and  brought  this  action  against  Bartlett,  who  kept 
possession  of  the  slaves  after  the  death  of  his  wife.  A  verdict  of 
nonsuit  was  entered,  and  Munsell  appealed. 

Per  Cur.  Buckner,  J,  The  nonsuit  was  entered  on  the  ground 
that  the  administratrix  had  not  consented  that  Achilles  Sneed 
should  take  the  slaves. 

It  has  been  contended  in  argument,  that  the  assent  of  the 
administrator  must  be  presumed  after  the  lapse  of  20  years  from 
the  time  that  letters  of  administration  were  granted  ;  that  a  jury 
may  at  all  events  rationally  draw  such  an  inference  from  the  lapse 
of  such  time  only,  because  it  would  bar  all  personal  actions,  and  by 
its  own  force  pay  all  debts.  This  position  has  not  been  supported 
by  the  citation  of  any  authority  ;  nor  can  the  argument  be  sustained 
on  principles  of  reason,  however  plausible  it  may  be.  The  lapse 
of  20  years  from  the  grant  of  administration  is  not  sufficient  of  itself 
to  raise  a  presumption  that  the  administrator  has  consented  that  the 
distributees  may  take  the  slaves  which  belong  to  the  intestate's  es 
tate  ;  nor  can  a  jury,  from  the  lapse  of  20  years  from  the  grant  of 
administration,  rationally  infer  that  the  administrator  has  consented 
11 


82  SLAVERY. 

that  the  distributees  should  take  the  slaves  \vhich  belong  to  the  es 
tate  of  the  intestate.  Ch.  J.  Robertson  dissented.  Judgment 
affirmed. 

12. 

ORR  et   al.   v.  PICKETT    et    al.     January    T.    1830.     3   J.   J. 
Marshall's    Rep.   268. 

Five  years'       Per   Cur.      Underwood,  J.     Under  the  statute  oflimitations  five 
of  T^lave  years'  continued  adverse  possession  vests  in  the  holder  a  complete 
gives  title.    tjt]e  to  a  sjave  against  all  the  world  ;  those  laboring  under   some 
disability  provided  for  in  the  statute,  excepted. 

13. 

ORR   et   al.   v.    PICKETT   et   al.    January    T.    1830.     3   J.    J. 
Marshall's  Rep.  268. 

Butthesta-  Per  Cur.  Underwood,  J.  So  long  as  Orr  held  possession  of 
no?  apply  tne  slaves  according  to  Pickett's  title,  the  possession  would  be  ad- 
where  the  verse  to  Pickett  :  and  if  the  slaves  were  not  delivered  to  him  on 

possession 

is  not  ad-  demand,  he  might  maintain  detinue,  or  any  appropriate  action,  and 
recover,  although  Orr's  possession  may  have  continued  more  than 
five  years.  The  possession  must  be  adverse,  or  the  statute  is  no 
protection.  Minis  v.  Mims,  ibid.  10G. 

14. 
MIMS  v.  MIMS.  Fall  T.  1829.    3  J.  J.  Marshall's  Rep.  103. 

Per  Cur.  Underwood,  J.  Possession  must  be  adverse,  or  the 
statute  is  no  protection  to  the  possessor  ;  as  where  he  holds  slaves 
as  pawnee,  or  pledgee,  or  bailee.  In  such  cases  there  is  no  limita 
tion,  but  chancery  may  presume  that  the  equity  of  redemption  has 
been  relinquished. 

15. 

ELMORE    v.  MILLS.     Sept.  T.  1796.     Haywood's   Rep.  SCO.  ; 
BERRY  v.  PULLIAM,  ibid.  16. 


When  the       ^er  ^ur-     ^he  act  °^  limitations  began   to  run  from  the  time 

statute  be-  fae  negrOes  came   into  the  possession  of  the  defendant,  unless  he 

was  entrusted  with  them  by  the  plaintiff  for  an  indefinite  period 

of    time;  for  then  the  ret   will    not    begin  to   run   till  demand 

made,  or  unless  the   plaintiff  can  show  that  the  defendant  re- 


OF  TITLE  TO  SLAVES.  83 

moved  himself  to  such  places  where  the  plaintiff  could  not  find 
him  to  institute  his  suit,  or  that  the  defendant  had  the  negroes  with 
out  the  knowledge  of  the  plaintiff. 

16. 
DAVIS  v.  MITCHELL.  Dec.  T.  1833.  5  Yerger's  Tenn.  Rep.  281. 

This  suit  was  brought  to  recover  a  slave.     The  plaintiff  proved  An   infant 
that   the  slave  had  been  given  to  him  whilst  an  infant  ;  that  at  the  ^avyer^eold 
time  of  making  the  gift,  possession  of  the  slave  was  given  to  his  possession 
guardian,  and  that  he  had  remained  with  his  guardian  for  three  years,  either  by' 
and  more,  before  he  came  to  the  possession  of  the  defendant.  g™rdian,°r 

The  court  charged  the  jury,  that  possession  of  a  slave  for  three  and  su.ch 

.  possession 

years  by  an  infant  claiming  the  slave  as  his  own,  would  communi-  for  three 
cate  no  title  to  the  infant,  as  the  infant  could  not  hold  adversely  un-  vestthe  ti- 
til  he  arrived  at  the  age  of  twenty-one  years.  llavehithe 

The  jury  found  a  verdict  for  the  defendant,  and  a  motion  for  a  infant. 
new  trial  having  been  made  and  overruled,  the  plaintiff  prosecutes 
this  writ  of  error  to  this  court. 

Per  Cur.  Green,  J.  The  court  further  charged,  that  "  a  pos 
session  of  three  years  by  an  infant  would  not  be  an  adverse 
possession,  nor  until  the  child  arrived  at  twenty-one  could  be  ad 
verse."  In  this,  also,  there  is  error.  The  possession  of  an  infant, 
either  by  himself  or  his  guardian,  may  as  well  be  adverse  as  to  all 
other  titles,  as  though  he  were  an  adult.  Infancy  protect  a  par 
ty  from  the  consequences  of  many  of  his  acts;  but  no  one  else  can 
take  advantage  of  that  infancy.  Judgment  reversed. 

17. 

KEGLER  v.  MILES.   Jan.    T.  1825.   Martin  &  Yerger's  Tennes 

see  Rep.  426. 

Per  Cur.     Catron,  J.     In  this  cause,  the  facts  are  substantially  The  ad- 
these  :    Hart  well  Miles,  in    1815,  was   very  dissipated,  and  had  g^o/ofa 
wasted  most  of  his  property,  and  was  tending  towards  insolvency,  slave  so 
Wm.  Boyd   paid  his  debts,  and  took  his  plantation  in   payment,   bar^  ac°- 
Some  negroes  were  left  ;  of  one  of  them,  now  in  controversy,  he 


made  a  bill   of  sale  to  his  daughter  Nancy,  then  about  14  years  brought  a- 

,  ,        _  T  .  .          .  gainst    the 

old.     No  consideration  was  given,  and  it  was  made  avowedly  in  possession, 

anticipation  of  future  insolvency.     In  1816,  or  1817,  Nancy  mar-  J 
ried  David  Kegler,  the  plaintiff  ;  the  slave  was  taken  into  Kegler's 

possession,  by  virtue  of  the  bill  of  sale,  and  continued  so  until  1822,  ty. 
when  Nancy,  the  wife,  died,  leaving  two  children.     Kegler  then 


84  SLAVERY. 

resided  in  Mississippi.    Kegler,  soon  after  the  death  of  his  wife,  re 
turned  to  the  house  of  his  father-in-law,  Hartwell  Miles,  in  David 
son  county,  Tennessee,  with  the  negro  girl  and  his  two  children. 
He  made  a  deed  of  gift  of  the  girl  to  the  children,  which  was  duly 
acknowledged,  and  registered  in  Davidson  county.     The  bill  of 
sale  made  by  Hartwell  Miles  to  his  daughter,  in  1816,  was  not 
registered  until   1825,   after  the   suit  was  brought.     Soon    after 
making  the  deed  of  gift,  Kegler  left  Tennessee,  leaving  the  negro 
girl  and  his  children  with   Hartwell  Miles.     In  1823,  Hartwell 
Miles  took  the  negro  to  Rutherford  county,  and  sold  her  to  Peter 
N.  Smith,  and  made  a  bill  of  sale  for  her,  which  was  duly  proven 
and  recorded.    Smith  paid  a  full  price,  and  believed  he  was  acquir 
ing  a  good  title.       He   loaned   the   slave  to  his  brother-in-law, 
Thomas  Miles,  who  was  sued  in  this  action  of  Kegler's  children. 
The  jury  found  for  the  plaintiffs,  upon  the  complicated  matters  of 
law  and  of  fact  arising  -under  the  statute  of  frauds  and  registry 
acts.     The  court  charged  the  jury.     A  new  trial  was  moved  for, 
and  refused ;  and  the  whole  evidence  set  out.  That  Nancy  Miles,  be 
fore  her  intermarriage  with  Kegler,  acquired  no  valid  title,  as  against 
a  purchaser  from  Hartwell  Miles,  is  a  perplexed  question  of  law 
and  fact ;  that  Kegler  acquired  any  title  in  consideration  of  the 
marriage,  depends  upon   facts,  doubtful  in  their  character.    There 
can  be  little  doubt  he  claimed  title  by  virtue  of  the  bill  of  sale  to 
his  wife  only.     But  one  simple  and  undisputed  fact  exists  in  the 
cause,  to  wit:  that  Kegler  took  possession  of  the  slave  as  his  own, 
and  held  her  as  such  adversely  to  all  others,  for  more  than  three 
years  before  he  conveyed  to  his  children.     That  the  art  of  limita 
tions  gave  him  a  good  title   to  defend  himself,   and  barred  the 
remedy  of  all  others,  is  certain  ;   but  did  it  vest  in  Kegler  an  abso 
lute  title,  which  he  could  assert  as  plaintiff?  is  the  question.     It  is 
contended,  that  the  remedy  of  Hartwell  Miles  was  barred,  but  the 
right  remained  ;  consequently,  if  he  got  pDssession  of  the  slave  by 
recaption,  the  right  and  possession  were  again  united  ;  of  which  he, 
or  those  claiming  under  him,  could  not  be  deprived  by  Kegler,  to 
whom  the  statute  gave  the  power  of  resistance,  as  a  defendant, 
vesting  no  right  that  could  be  asserted  as  plaintiff;  that  the  statute 
alone  operated   upon  the   remedy,  without  touching   the    right. 
Such  are  the  reasonings  upon  the  statute,  when  applied  to   debtor 
and  creditor  in  the  English  and  American  courts.     That  a  claim 
barred  by  time  is  a  good  consideration  for  a  new  promise,  is  set 
tled  beyond  controversy.     Clementson  v.  Williams,  8  Cranch's 


OF  TITLE  TO  SLAVES.  85 

Rep.  72.  74.;  3  Munf.  Rep.  181.  197.;  Bell  v.  Rolandson,  Har- 
din's  Rep.  301.  Does  the  same  rule  apply  to  the  slave  property 
of  the  slave  holding  states?  In  the  application  of  the  statute  to 
this  description  of  property,  the  American  courts,  of  necessity, 
must  fix  rules  of  their  own  ;  it  is  peculiar  in  its  character ;  and 
English  jurisprudence  furnishes  no  precedents  that  can  materially 
aid  us.  The  slave  passes  by  deed,  and  is  not  regularly  assets  in 
the  hands  of  the  administrator.  All  the  other  goods  must  first  be 
exhausted,  and  their  the  county  court  will  order  the  sale  of  the 
slaves.  Our  laws,  and  those  of  Virginia,  'equally  in  force  in  Ken 
tucky  in  these  respects,  are  the  same  in  substance.  Were  the  doc 
trines  contended  for  by  the  counsel  for  the  plaintiff  in  error  the  true 
ones,  this  consequence  would  follow  :  A.  gets  possession  of  B's. 
female  slave,  say  in  Virginia,  brings  her  here,  sells  her  to  an  inno 
cent  purchaser,  who  keeps  her  ten  or  twenty  years;  she  then  has 
increase  ;  the  right  of  the  mother  is  in  the  Virginia  claimant ;  the 
increase  follow,  of  course,  the  original  right  :  before  the  child  is 
three  years  old,  the  original  claimant  sues  for,  and  recovers  it.  Did 
the  woman  have  ten  children,  all  would  be  recovered  in  the  same 
manner.  The  use  of  the  mother  would  be  in  one  man ;  the  right 
unbarred,  to  the  increase  in  another.  The  next  consequence  is, 
A.  that  holds  a  slave  three  years,  and  the  remedy  is  barred  as  to 
him;  but  the  statute  communicates  no  right ;  he  then  sells  to  B., 
who  cannot  avail  himself  of  the  bar  formed  by  the  statute  in  favor 
of  the  first  possessor,  and  the  latter  can  be  sued  at  any  time  within 
three  years  after  his  possession  is  acquired.  Such  is  the  doctrine 
declared  by  Judge  Haywood/mBlanton  v.  Caulson,  3  Hayw.  Rep. 
155-6.  It  is  also  declared,  that  no  property  is  acquired  by  three 
years'  possession ;  the  remedy  by  action  is  barred,  but  the  right  of 
recaption  exists.  No  such  question  was  involved  in  that  cause  ; 
and  the  suggestions  made  by  Judge  Hay  wood  were  used  as  an  ar 
gument  to  prove,  that  a  want  of  knowledge  in  the  plaintiff  where 
his  property  was,  until  within  three  years  before  action  brought, 
would  be  a  good  replication  to  the  statute  of  limitations.  The 
cause  was  again  brought  before  the  supreme  court,  at  Sparta,  in 
1825,  and  was  adjudged  for  the  defendant,  because  the  replication, 
that  the  plaintiff  did  not  know  where  his  pyoperty  was,  &c.,  was 
holden  bad,  and  the  suggestions,  reported  in  3  Haywood,  were 
overruled. 

This  decision  was  in  accordance  with  that  of  M'Ginnis  v.  Jack 
and  Cocke,  made  at  Knoxville,  1825.     Nothing  could  be  imagined 


86  SLAVERY. 

much  more  dangerous  to  the  repose  of  society,  than  the  recogni 
tion  of  the  principle,  that  although  the  remedy  was  barred,  the 
right  of  recaption  existed,  in  cases  of  dormant  claims  to  slaves. 
That  this  mode  of  asserting  the  claim  would  result  in  personal 
violence  of  the  most  dangerous  character  is  certain.  No  authority 
is  found  giving  sanction  to  such  an  idea.  The  better  opinion  is, 
that  when  the  right  exists  unbarred,  and  the  true  owner,  by  violence, 
or  by  a  tortious  and  unlawful  act,  obtains  possession  of  the  slave, 
he  shall  not  be  permitted  to  set  up  his  better  title,  when  sued  by 
him  who  was  tortiously  deprived  of  the  possession.  To  do  so 
would  be  to  permit  the  defendant  to  take  advantage  of  his  own 
wrong.  3  Hen.  &  Munf.  61.  ;  2  Tenn.  Rep.  98.  ;  1  Hayvv.  Rep. 
13.  ;  Act  of  1779,  ch.  11,;  Act  of  1799,  ch.  28.  Slaves  having 
mind,  the  rule  laid  down  in  3  Black.  Com.  4.  must  be  most  cautious 
ly  applied.  He  who  holds  possession  of  land  peaceably  for  seven 
years,  by  virtue  of  a  grant,  or  deed,  acquires  a  right  of  soil,  and  if 
turned  out  of  possession  may  regain  it  by  the  action  of  ejectment. 
Does  the  same  rule  hold  in  reference  to  slaves,  when  the  remedy 
of  the  owner  is  barred  by  three  years' adverse  possession?  So 
we  hold  ;  and  that  three  years'  possession  of  the  slave  in  question, 
acquired  without  fraud  or  force,  gave  to  David  Kegler  a  legal  title  to 
her,  and  that  the  plaintiff  ought  to  recover  in  this  action.  We  feel 
it  our  duty,  as  also  our  inclination,  to  follow  the  decisions  of  sister 
states  where  slavery  exists.  Such  has  been  the  course  of  decision 
in  Virginia.  Newby  v.  Blakey,  3  Hen.  &  Munf.  56.  66.  In  the 
Supreme  Court  of  the  United  States.  Brent  v.  Chapman.  5  Cranch's 
Rep.  358.,  followed  in  Guy  v.  Shelby,  11  Wheat,  571.,  and  of 
Kentucky,  in  Thompson  v.  Cald well,  3  Little's  Rep.  136.  The 
judgment  of  the  circuit  court  must,  therefore,  be  affirmed. 


OF  TITLE  TO  SLAVES.  87 


(F.)    BY    POSSESSION*    WITHIN    THE    STATUTE     OF    FRAUDS,    AND 
FRAUDULENT     CONVEYANCES. 

1. 

ORR  et  al.  v.  PICKETT.     Oct.  T.  1830.      3  J.   J.   Marshall's 

Rep.  268. 

Per  Cur.  Underwood,  J.  Under  the  statute  of  frauds  five 
years'  continued  possession  of  a  slave,  holding  the  slave  upon  a  frauds, 
loan,  or  under  the  title  of  another,  who  claims  a  reservation,  or 
limitation  of  an  use,  or  property  in  ihe  slave,  is  rendered  fraudu 
lent,  as  to  creditors  and  purchasers,  and  the  absolute  property 
declared  to  be  with  the  possession,  unless  the  loan,  reservation,  or 
limitation  of  use,  or  property,  were  declared  by  will,  or  deed  in 


*  There  is  an  extended  and  an  enlightened  review  of  the  authorities  in  Kent's 
Com.  vol.  2.  p.  512.,  upon  the  subject,  how  far  the  sale  of  goods  is  affected  by  fraud, 
by  the  possession  not  accompanying  the  sale  or  transfer.     After  a  review  of  the 
English  cases,  he  observes,  that  the  Supreme  court  of  the  United  States,  in  Hamilton 
v.  Russel,  1  Cranch's  Rep.  309.,  have  adopted  the  rule  laid  down  in  Edwards  v.  Harben, 
3  T.  Rep.  618.,  that  if  the  vendee  took  an  absolute  bill  of  sale,  to  take  effect  immediately* 
by  the  force  of  it,  and  the  goods  remain  in  the  possession  of  the  vendor  for  a  limited 
time,  such  absolute  conveyance  without  the  possession  was  such  a  circumstance  as, 
per  sf,  made  the  transaction  fraudulent  in  law.     Which  decision  is  now  obligatory  in 
the  United  States  courts.     The  same  principle  has  been  adopted  in  Virginia.     Alex 
ander  v.  Deneale,  2  Munf.  Rep.   341.      But  the  principle  seems  to  be  modified  by 
Loud  v.  Jeffries,  5  Rand.  Rep.  211.,  and  Clayton  v.  Anthony,  6  Rand.  Rep.  285.,  and 
the  cases  in  the  text.     The  same  principle  has  been  adopted  in  South  Carolina. 
Kennedy  v.  Ross,  2  Const.  Rep.  125. ;  Hudnal  v.  Wilder,  4  M'Cord's  Rep.  294. 
But  recent  cases  in  that  state  seem  to  have  adopted  the  doctrine,  that  the  want  of  pos 
session  accompanying  an  absolute  and  unconditional  sale,  is  only  primaftcie  evidence 
of  fraud.     Smith  v.  Henry,  2  Bailey's  Rep.  118.     In  Kentucky  and  Tennessee,  the 
case  of  Edwards  v.  Harben,  is  respected  and  followed.    It  would  seem,  however,  that 
in  Kentucky  the  principle  is  modified  by  the  case  of  Wash  v.  Medley,  1  Dana's  Rep. 
269.     The  rule  prevails  in  its  full  force  in  Pennsylvania,  except  in  the  case  of  house 
hold  goods.     Dawes  v.  Cope,  4  Binney's  Rep.  258. ;  Babb  v.  Clemson,  10  Serg.  & 
Rawle,  419. ;  Clow  v.  Woods,  5  S.  &  R.  275. ;  Welsh  v.  Hayden,  1  Penn.  Rep.  57. 
And  the  same  rule  prevails  in  New  Jersey.     Chumar  v.  Wood,  1  Halst.  Rep.  155. ; 
but  is  qualified  by  Sterling  v.  Vancleve,  7  Halst.  Rep.  285.     So,  also,  in  Conecticut. 
Patton  v.  Smith,  5  Conn.  Rep.  196.;  Smith  v.  Thompson,  9  Conn.  Rep.  63.     So 
also,  in  Vermont,  the  court  held,  that  in  sales  of  personal  property,  if  the  seller  re 
mained  in  possession  after  the  sale,  it  is  fraudulent  and  void  as  to  creditors.     Board- 
man  v.  Keeler,  1  Aiken's  Rep.  158.;  Fletcher  v.  Howard,  2  Aiken's  Rep.  115.; 
Beattie  v.  Robin,  2  Vermont  Rep.  181. ;  Judd  et  al.  v.  Langdon,  5  Vermont  Rep. 
231. ;  Fahnsworth  v.  Shepard,  6  Vermont  Rep.  521. 

In  North  Carolina  the  rule  is  relaxed :  the  want  of  possession  in  the  vendee  is  only  prima 
facie  evidence  of  fraud,  and  maybe  explained.  Gregory  v.  Perkins,  4  Dev.  N.  C.  Rep. 


SLAVERY. 

writing,  proved  and  recorded.*  And  in  Meaux  v.  Caldwcll,  Fall 
T.  1810.,  2  Bibb's  Rep.  244.;  S.  P.  Gillespie  v.  Gillespie,  2 
Bibb's  Rep.  8. 

Held  by  the  court,  Clark,  J.,  that  a  loan  of  slaves  is  within  the 
statute  of  frauds,  and  must  be  evidenced  by  will  or  deed,  recorded, 
to  be  good  against  creditors  and  purchasers.  Five  years'  posses 
sion  gives  an  absolute  right  to  the  loanee,  so  far  as  it  relates  to 
creditors  and  purchasers,  unless  a  demand  has  been  made  and  pur 
sued,  by  the  course  of  law,  before  the  expiration  of  that  period. 
As,  where  a  person  lending  slaves,  suffers  them  to  remain  5  years 
with  the  person  to  whom  the  loan  is  made,  during  which  time  the 
possessor  contracts  debts,  and  the  lender  then  retakes  the  slaves, 
they  are,  nevertheless,  liable  to  satisfy  those  creditors,  the  loan  not 


50. ;  Leadman  v.  Harris,  3  Dev.  Rep.  146. ;  and  so,  also,  the  same  principle  is  esta 
blished  in  Tennessee,  Callen  v.  Thompson,  3  Yergers  Rep.  475.  502.  And  in  New 
York,  by  the  case  of  Bisselv.  Hopkins,  3  Cowen's  Rep. 166,  the  same  principle  was  re 
cognized.  And  in  New  Hampshire,  Haven  v.  Low,  2  N.  Hamp.  Rep.  13.  And  in 
Massachusetts,  Brooks  v.  Powers,  15  Mass.  Rep.  244. ;  Bartlett  v.  Williams,  1  Pick. 
Rep.  288.  Chancellor  Kent,  in  the  review  before  referred  to,  regrets  that  the  prin 
ciple,  whether  the  absence  of  possession  in  the  vendee  or  loanee  shall  be  evidence 
of  fraud,  per  se,  or  only  prima  facie  evidence,  and  subject  to  explanation  before  a  jury, 
is  so  fluctuating  and  so  variously  decided  in  the  courts  of  the  states.  It  is  obvious, 
from  the  gerreral  tenor  of  the  review,  he  is  in  favor  of  the  rule  as  recognized  in  Ed 
wards  v.  Harben,  and  in  the  United  States  Court,  in  Hamilton  v.  Russel.  He  calls 
it  the  conservative  principle,  and  one  calculated  to  prevent  frauds. 

.  «* 

*  In  Hamilton- v.  Russel,  1  Cranch's  Rep.  309,  the  court  held,  that  an  absolute, 
unconditional  sale  of  property,  where  the  possession  does  not  accompany  and  follow 
the  deed,  is  fraudulent,  and  must  be  so  determined  by  the  court.  Tolcotv.  Wilcox  9 
Conn.  Rep.  134.,  is  to  the  same  effect.  Story,  J.,  in  Conrad  v.  the  Atlantic  Insu 
rance  Company,!  Peters'  Rep.  386.,  says,  "  without  undertaking  to  suggest  whether, 
in  any  case,  the  want  of  possession  in  the  thing  sold,  constitutes,  perse,  a  badge  of 
fraud,  or  is  only  prima  fucie  a  presumption  of  fraud,  a  question  upon  which  a  di 
versity  of  opinion  has  been  expressed,"  avoiding  the  expression  of  an  opinion  on 
the  point.  But  in  Bissel  v.  Hopkins,  3  Cowen's  Rep.  166.,  Savage,  Ch.  J.,  held,  it 
was  only  presumptive  evidence  of  fraud,  and  might  be  explained,  and  was  a  proper 
subject  for  the  jury.  And  the  same  principle  was  recognized  and  established  in  Jack 
son  v.  Timmerman,  7  Wend.  Rep.  436.  In  this  case,  Sutherlund,  J.,  observed,  that 
whether  fraudulent  ornot,  was  in  this,  as  in  all  othercases,  aquestion  of  fact  for  the  jury. 
There  being  no  such  thing  as  fraud  in  law  as  distinguished  from  fraud  in  fact.  What 
was  formerly  considered  as  fraud  in  law,  or  conclusive  evidence  of  fraud,  and  to  be 
so  pronounced  by  the  court,  ia  now  prima  facie  evidence  to  be  submitted  to,  and 
passed  upon,  by  the  jury.  The  rule  may  therefore  be  considered  as  settled  in  New- 
York,  contrary  to  the  English  cases,  and  that  laid  down  in  Hamilton  v.  Russel.  And 
the  rule  is  broken  in  upon  in  Tennessee,  by  the  case  Callen  v.  Thompson,  3  Yerger's 
Rep.  475. 


OF  TITLE  TO  SLAVES.  89 

having  been  declared   by  any  public  act  whereby  creditors  could 
take  warning  that  the  slaves  were  only  loaned. 

2. 

FITZHUGH  et  al.  v.  ANDERSON  et  al.  April  T.  1798.  2  Hen. 
&  Munf.  289. ;  VERDIER  v.  LEPRETE,  4  Louisiana  Rep. 
41.  ;  THOMAS  v.  THOMAS,  2  Marshall's  Rep.  430. 

Appeal  from  the  following  decree  of  the  superior  court  of  chan-  The  doc- 
eery,  for  the  Richmond  district :   "  That  a  father,  putting  his  son  principally 
in  possession  of  slaves,  and  suffering  him  so  long  to  retain  them,  [jJe^iu-011 
(20  years,)  and  to  convert  to  his  own  use  their  labor  and  services,  sive  credit 
that  the  son  thereby  obtained  a  delusive  credit,  ought  to  be  deemed  given  to 


to  have  given  the  slaves  to  his  son,  in  a  controversy  between  the 
father  and  volunteer  claimants  under  him,  and  purchasers,  or  session, 
creditors  of  the  son,  unless  his  possession  had  been,  by  some  writ 
ten  act  registered  in  a  reasonable  time,  and  in  a  proper  office, 
shown  to  have  been  fiduciary,  or  no  more  than  usufructuary  by  some 
written  publication  in  solemn  form  premonishing  people  with  whom 
the  st>n  should  deal  that  he  was,  although  the  visible,  not  the  real 
owner."  The  decree  was  appealed  from. 

Per  Cur.  Tucker,  J.  The  lapse  of  time  between  the  loan  (if 
in  fact  it  were  a  loan)  of  the  slaves  by  the  father  to  the  son,  being 
nearly  or  quite  twenty  years,  the  period  between  the  sale  and  the 
death  of  the  father,  the  limitation  is  a  complete  bar  in  analogy  to 
the  statute  of  limitations.  Five  years  peaceable  possession  of  a 
slave  will  operate  as  a  bar  to  the  recovery  by  the  former  owner, 
unless  some  express  bargain  or  agreement  be  proved,  showing  that 
the  possession  of  the  holder  is,  in  fact,  in  the  possession  of  him  who 
claims  the  property.  If  no  such  proof  be  adduced,  the  law  con 
strues  the  property  to  be  in  him  who  hath  the  unqualified  posses 
sion  for  such  a  length  of  time. 

3. 

HOOPER'S  ADM'X  v.  HOOPER.       Sept.  T.   1801.      1  Overton's   , 

1  And    the 

Rep.  187.  acknow 

ledgment 

Held  by  the  court,  that  if  a  father  represent  a  negro  to  be  the  ,°0fan^f  that 
property  of  his  son,  who  is  about  to  marry,  and  which  representation  the  proper- 
induces  to  the  marriage,  and  delivers  possession  of  the  slave,  and  to  the 
permits  that  possession  to  continue  through  the  son's  life,  who  also  wjJ|J  not 
claims  the  negro  as  his  own,  it  is  a  gift.     The  acknowledgment  avail- 
12 


90  SLAVERY 

of  the  son,  that  the  slave  belongs  to  the  father  will  not  be  received 
in  opposition  to  the  claim  of  the  widow  of  the  son. 

4. 

ORR  et  al  v.  PICKETT  et  al.  January  T.  1830.  3  J.  J  Marshall's 
Rep.  279. ;  KENNINGHAM  v.  M'LAUGHLIN,  3  Monroe's 
Rep.  30. 

The^ruleas  per  Cur.  Underwood,  J.  Where  there  are  many  persons  liv- 
shali  be  ing  together,  constituting  one  family,  and  there  are  slaves  in  the 
in11  posses-  service  of  the  family  subject  to  the  occasional  orders  of  each  mem- 
sion.  ^er  Of  jtj  the  possession  in  law  should  be  considered  and  regarded 

as  in  those  of  the  family  who  have  the  right  to  the  property.  In  such 
case,  if  an  infant  be  the  real  owner,  and  have  title  to  a  slave,  the 
infant  should  be  regarded  as  in  possession,  although  the  father 
controls  the  slave,  and  causes  it  to  work  as  he  pleases.  So,  also, 
if  the  title  be  not  in  the  infant,  but  in  another,  who  is  bound  to 
hold  the  title  for  the  use  of  the  infant ;  then  we  are  of  opinion  the 
possession  should  still  be  considered  with  the  infant,  as  cestui  que 
use,  although  the  father  directs  and  superintends  the  labor  of  the 
slave.  If  parents  and  adult  children  live  together,  and  slaves  wait 
on  the  family  promiscuously,  as  they  may  be  ordered,  and  the 
father  as  the  head  of  the  family  should  superintend  and  direct  the 
most  important  employment  of  the  slaves,  still  possesssion  should 
be  regarded  as  being  with  those  of  the  family  who  have  title. 
Where  many  persons  are  in  the  enjoyment  of  the  use  of  property, 
be  they  adults,  or  infants  in  part,  those  who  trust  upon  the  faith 
of  the  property  are  bound  to  discriminate,  and  to  ascertain,  at  their 
peril,  who  has  title  among  those  using  the  property.  When  the 
title,  whether  it  be  legal  or  equitable,  is  found  to  be  in  one  who, 
with  others,  seems  to  be  enjoying  the  use  in  common,  the  posses 
sion  in  law  is  fixed  with  that  one  having  title,  and  his  creditors 
alone  can  reach  the  property. 

5. 

MIDDLETON   v.    CARROL.     June  T.    1830.      4  J.   J.  Marshall's 

Rep.  143. 

The  rule  in       Held  by  the   court,  Buckner,  J.,   that  an  unconditional  sale  of 
Kentucky.   s]aveSj  where  possession  remains  with  the  vendor,  is,  per  se,  fraud 
ulent  against  creditors  and  purchasers. 


OF  TITLE  TO  SLAVES.  91 

6. 
VERDIER  v.   LEPRETE.  May  T.  1832.     4  Louisiana  Rep.  41. 

Per  Cur.     Martin,  J.     A  vendee  who  suffers  personal  property  And  Loui- 
purchased  to  remain  in  possession  of  the  vendor,  and  thus  enables 
him  to  acquire  credit,  or  deceive  a  subsequent  purchaser,  cannot 
resist  the  claim  of  his  vendor's  creditor,  nor  that  of  a  subsequent 
bonafidc  purchaser. 

7. 

HOBBS  v.  BIBB.   July    T.    1827.     1    Stewart's    Alabama   Rep.  Possession 
54.;  S.  P.  AYRES  v.  MOORE,  ibid.  336.;  MARTIN  v.  WHITE,  of0peersr?nal 

*L*Jl/°O  • 

ibid.  IbJ.  remaining 

in  the  ven- 

Hobbs  purchased  slaves  of  J.  &  J.  Estells  for  a  debt  they  owed  ciorispre- 
him,  and  left  them  in  their  possession  on  hire,  and  while  in  their  evidenceof 

ownership 
_       which  may 

be  rebnt- 

*  Fraud  vitiates  all  contracts.  Even  a  private  act  of  the  legislature  maybe  avoided,  *ed'*  but  lt 
if  it  was  obtained  by  deception  and  fraud.  Commonwealth  v.  Breed,  4  Pick.  Rep.  dence  of " 
430.  Parsons,  Ch.  J.,  observed,  in  Bliss  v.  Thompson,  4  Mass.  Rep.  433.,  that,  it  fraud,  per 
is  generally  true,  that  a  man  shnll  not  be  require'd  to  aver  against  his  own  deed.  But  se- 
the  case  of  fraud  is  always  excepted,  which  vitiates  every  contract.  A  vendor  of 
goods  is  bound  to  disclose  a  latent  defect,  if  known.  Hugh  v.  Evans,  4  M'Cord's 
Rep.  169. ;  yet  the  sale  and  delivery  of  goods  will  pass  the  title  as  between  the  par 
ties,  although  obtained  by  fraud.  Rowley  v.  Bigelow,  12  Pick.  Rep.  307. ;  Somers  v. 
Brewer,  2  Pick.  Rep.  184.  And  whether  there  is  fraud  or  not,  must  depend  upon 
the  peculiar  circumstances  of  each  case.  In  general,  it  is  not  a  conclusion  from  a 
single  fact,  but  from  all  the  facts;  and  is,  therefore,  a  proper  subject  for  inquiry  by 
a  jury  in  a  court  of  law.  Watkin's  v.  Stockett's  Ad'mr,  6  Har.  &  Johns.  Rep.  435. 
455.  And  there  must  be  a  fraudulent  design.  Young  v.  Covell,  8  Johns.  Rep.  23. 
When  matters  are  alleged  to  be  fraudulent  in  a  court  of  law,  it  is  for  the  jury  to  find 
the  facts,  and  determine  their  character.  Gregg  v.  Lessee  of  Sayre  and  Wife,  8  Conn. 
Rep.  244.  And  it  may  be  laid  down  as  a  general  principle,  that  a  conveyance  of 
lands  or  goods  liable  to  be  set  aside  for  fraud,  will  be  good  in  the  hands  of  a  bona  fide 
purchaser  of  the  vendee  without  notice.  Fletcher  v.  Peck,  6  Cranch's  Rep.  133. ; 
Mowrey  v.  Walsh,  8  Cowen's  Rep.  233  ;  Hollingsworth  v  Napier,  3  Caines'  Rep. 
182.  And  it  may  also  be  laid  down  as  a  general  principle,  that  on  the  absolute  sale 
of  goods  possession  must  accompany  the  deed,  and  the  want  of  change  of  possession 
is  considered,  per  sr,  such  a  circumstance  as  to  render  the  transaction  fraudulent  and 
void.  Talcott  v.  Wilcox,  9  Conn.  Rep.  134.  ;  Patten  v.  Smith,  4  Conn.  Rep.  455  . 
Burrows  v.  Stoddard,  3  Conn.  Rep.  160.  ;  Chumar  v.  Wood,  1  Halst.  Rep.  155. 

The  leading  case  in  which  this  principle  has  been  effected,  and  in  which  the  ex 
ceptions  to  the  rule  are  stated,  is  in  Bissell  v.  Hopkins,  3  Cowen's  Rep.  166.  It  was 
held  in  that  case,  that  possession  of  goods  remaining  in  the  hands  of  the  vendor  after 
sale,  is  but  prima  facie  evidence  of  fraud  as  to  creditors,  and  may  be  explained.  Bi?_ 
sell  v.  Hopkins,  3  Cowen's  Rep.  163.  Numerous  cases  are  cited  in  the  note  to  the 
case,  to  show,  that  the  English  rule  isincumbered  with  so  many  exceptions  as  to  be  no  lon 
ger  of  use  in  any  practical  application  to  the  subject  of  frauds.  Where  the  sale  is 
absolute,  htfvrever,  there  can  be  tout  little  doubt  that  the  interest  of  society  would  be 


92  SLAVERY. 

possession  they  were  seized  under  an  execution  against  Estells,  by 
a  judgment  creditor,  the  defendant,  whose  judgment  was  entered 
about  the  time  of  the  sale  to  Hobbs. 

The  court  charged  the  jury,  that  although  no  fraud  may  have 
been  intended  by  the  parties,  and  although  a  fair  price  may  have 
been  actually  paid  by  Hobbs,  and  although  the  contract  of  hire 
from  Hobbs  to  Estells  might  be  also  bonafule,  for  a  fair  price,  and 
without  intentional  fraud,  yet  that  the  possession  of  the  property 
remaining  with  Estells  was  fraud  of  itself,  as  to  creditors,  and  ren 
dered  the  title  of  Hobbs  inoperative.  Hobbs  excepted. 

Per  Cur.  Lipscomb,  Ch.  J.  After  referring  to  Shepard's 
Touchstone,  66.,  Twyne's  case,  3  Cooke's  Rep.  87.,  Edwards  v. 
Harben,  2  T.  Rep.  587.,  Kid  v.  Rawlinson,  2  Bos.  &  Pul.  59., 
Lady  Arundel  v.  Phips  et  al.,  10  Vesey's  Rep.  145.,  Stewart  v. 
Lomb,  1  Broad.  &  Bing.  506.,  Watkins  v.  Burch,  4  Taunt.  Rep. 
823.,  Hamilton  v.  Russel,  1  Cranch's  Rep.  399.,  Ludlow  v.  Kurd, 
19  Johns.  Rep.  221.,  and  Bissel  v.  Hopkins,  3  Cowen's  Rep,  166., 
decided,  that  personal  property  remaining  with  the  vendor  is  pre 
sumptive  evidence  of  ownership  in  him;  but  this  presumption  may 
be  rebutted  by  proof:  possession  remaining  with  the  vendor  is 
ruled  to  be  only  prima  facie  evidence  of  fraud.  And  in  Echols  v. 
Derrick,  2  Stewart's  Rep.  144.,  the  court  held,  that  where  A.  pur 
chased  at  sheriff's  sale,  without  notice,  a  slave  which  had  been 
previously  conveyed  by  deed  in  trust,  but  the  deed  not  recorded  in 
the  manner  required  by  the  statute  of  frauds,  and  after  the  sher 
iff's  sale,  and  before  the  expiration  of  twelve  months  from  the  date 
of  the  deed,  the  trustees  sold  the  property,  and  executed  the  trust, 
the  statute  dispensing  with  the  registry  within  twelve  months,  the 
adverse  possession  of  A.  under  his  purchase  at  the  sheriff's  sale, 
made  no  difference,  and  did  not  prevent  the  trustees  from  execut 
ing  his  trust.  And  see  Astor  v.  Wills,  4  Wheat.  Rep.  466. 


best  promoted  to  hold  it  evidence  of  fraud,  where  the  property  was  not  changed. 
But  in  qualified  sales,  mortgages,  loans,  <fec.  of  property,  it  seems  to  be  necessary  in 
those  complicated  arrangements  of  which  property  is  susceptible  among  families, 
that  they  should  be  open  to  explanation,  and  that  the  mere  want  of  change  of  posses 
sion  should  not,  per  se,  be  evidence  of  fraud.  And  that  is  probably  the  true  distinc 
tion  which  might  be  drawn  from  the  cases.  It  is  the  principle  laid  down  in  Hamilton 
v.  Russel,  1  Cranch's  Rep.  309.,  and  is  sustained  by  a  great  number  of  cases,  English 
and  American.  It  is  obvious,  however,  the  rule  does  not  apply  where  the  property 
is  BO  situated  it  cannot  be  delivered.  Conrad  v.  Atlantic  Ins.  Co.,  1  Peter's  Rep. 
386.;  Biasel  v.  Hopkin's,  3  Cowen's  Rep.  166.;  Callen  v.  Thompson,  3  Verger's 
Rep.  475. 


OF  TITLE  TO  SLAVES.  93 

8. 
AYRES  v.  MOORE.     January  T.  1830.     2  Stewart's  Rep.  336. 

Trespass  by  Moore  against  the  defendant,  for  taking  away  a  ne-  Butitisfor 
gro  boy  Torn.  Ayres  pleaded,  that  he  levied  on  the  boy  as  sheriff,  *®  ^e[° 
the  boy  beins:  the  property  of  one  James  B.  Moore,  by  virtue  of  ther  itwas 

J  _  made   to 

an  execution  against  him.  The  plaintiff  relied  on  a  bill  of  sale  to  hinder  or 
him  for  the  negro,  by  James  B.  Moore,  in  March,  1825,  for  the  ditors, 
consideration  of  $225,  to  be  paid  at  Christmas;  and  which  was 
duly  paid,  and  the  bill  of  sale  duly  recorded.  The  sale  took  place 
at  the  house  of  James  B.  Moore,  when  the  slave  was  delivered  by 
putting  his  hands  into  the  hands  of  the  purchaser,  who  afterwards 
went  home,  leaving  the  slave  in  the  possession  of  the  vendor. 
About  six  weeks  after  the  plaintiff  took  the  boy  home,  but  went 
backwards  and  forwards  from  the  house  of  the  purchaser  and  ven 
dor,  but  was  some  time  after,  continually  at  the  house  of  the  pur 
chaser.  The  defendant  gave  in  evidence  a  mortgage  of  the  boy, 
made  after  the  sale  to  one  Brittain,  who  forcibly  took  the  boy,  and 
retained  him  near  twelve  months,  until  J.  B.  Moore  satisfied  the 
debt,  when  the  boy  was  returned,  and  again  went  into  the  posses 
sion  of  William  Moore. 

The  counsel  for  the  defendant  requested  the  court  to  instruct 
the  jury  "  that  if  they  believed  the  possession  did  not  accom 
pany  and  follow  the  bill  of  sale  from  J.  B.  Moore  to  the  plaintiff, 
William  Moore,  at  the  time  of  its  execution,  that  then  the  said  bill 
of  sale  was  fraudulent  in  law,  as  against  creditors  and  subsequent 
purchasers."  But  the  court  refused,  and  charged  them,  "  that  if 
they  believed  that  the  consideration  of  the  bill  of  sale  was  bonafide, 
and  that  it  was  duly  recorded,  it  was  good  and  valid  in  law,  though 
the  negro  remained  in  possession  of  the  vendor  previous  to  that 
time." 

The  Court,  Lipscomb,  Ch.  J.,  and  Saffold,  J.,  both  gave  opinions, 
and  after  referring  to  Hobb  v.  Bibb,  supra  ;  Bissell  v.  Hopkins,  2 
Cowen'sRep.  431.,  Barren  v.Paxton,  5  Johns.  Rep.  26 1.,  Dawes  v. 
Cope,  5  Binney's  Rep.  265.,  Brooks  v.  Powers,  15  Mass.  Rep.  244., 
Howell  v.  Elliott,  1  Badger  &  Dev.  Rep.  76.,  Clow  v.  Woods,  5 
Serg.  &  Rawle's  Rep.  275.,  held,  that  where  the  vendor  remains  in 
possession  of  personal  property  sold,  it  is  not  sufficient,  as  against 
creditors,  that  the  consideration  of  the  sale  be  bona  fide,  and  the 
bill  of  sale  recorded  ;  it  must  appear  that  the  sale  was  not  made  to 


94  SLAVERY. 

hinder  or  delay  creditors;  and  whether  it  was  made  to  hinder  or 
delay  creditors,  is  to  be  determined  by  the  jury  from  all  the  cir 
cumstances. 

9. 

GARTH'S  EX'RS  v.  BARKSDALE.  March  T.  1816.  5  Munf. 
Rep.  101. ;  GAY  v.  MOSELY,  2  Munf.  Rep.  543. ;  BEASLEY 
v.  OWEN,  3  Hen.  &  Munf.  Rep.  449. 

Five  years'  Trespass  brought  by  Barksdale  against  Garth,  sheriff,  for  un- 
possessuTn  lawfully  seizing  two  slaves.  The  plaintiff  claimed  the  slaves,  as 
of  slaves,  hav'm<r  been  the  original  owner,  and  only  having  lent  them  to  Barks- 

under  a  J 

loan  by  pa-  dale,  who  had  married  his  daughter  ;  the  defendant  undertook  to 

ment,  prove   that  the  slaves  had  been  in  Barksdale's  peaceable  and  unin- 

T^8  the*1'  terrupted  possession  for  five  years  from  the  time  when  they  were 

loanee,  first  loaned  him,  and  before  the  service  of  the  execution, 
his  credit-         The  court  instructed  the  jury,  that  if  the  slaves  loaned  by  the 

whichncan-  plaintiff  to  Barksdale,  had,  before  the  expiration  of  the  five  years, 

not  be  de-  keen  returned,  by  the  consent  of  the   lender  and  borrower,   that 

vested  by 

returning     would  interrupt  the  possession  ;   and   that   even   if  the  borrower, 
the  exoira-  after  five  years'  possession  of  the  slaves,  had  surrendered  the  same 
tion  of  the  j.Q  ^Q  lender,  the  lender's  right  to  the  slaves  became   revested  in 
him,  so  as  that,  in  neither  case  could  an  execution,  in  behalf  of  a 
creditor  against  the  borrower,  which  issued  subsequent  to  the  last 
return  of  the  slaves  into  the  borrower's  possession,   be  levied  on 
said  slaves,  although  in  the  borrower's  possession  at  the   time   of 
levying  said   execution,  unless  five  years  had  again  elapsed  after 
the  possession  of  said  slaves  was  restored  to  the  borrower.     Ver 
dict  for  plaintiff;  and  the  defendants  appealed. 

Per  Cur.  The  Court  is  of  opinion,  that  the  instruction  of  the 
superior  court  is  erroneous  in  this,  that  the  five  years'  possession 
of  the  negroes  by  Douglas  Barksdale,  if  proved,  vested  a  title  in 
him,  which  enured  in  favor  of  his  creditors,  notwithstanding  he 
might  thereafter  have  returned  the  same  to  the  plaintiff,  from  whom 
he  had  received  them.  Judgment  reversed.  See  Boyd  et  al.  v. 
Stainback  et  al.,  5  Munf.  Rep.  305.  Where  the  court  declared, 
that  a  loan  of  slaves,  though  not  declared  by  deed  in  writing,  duly 
recorded,  and  therefore  void  as  to  creditors,  (the  loanee  having 
continued  in  possession  five  years  without  such  demand  as  would 
bar  their  right,)  is  nevertheless  effectual  between  the  parties  and 
their  representatives.  If,  therefore,  the  loanee  die  in  possession, 
they  are  not  to  be  considered  as  assets  belonging  to  his  estate,  nor 


OF  TITLE  TO  SLAVES.  95 

can  bs  recovered  as  such  ;  being  liable  to  his  creditors,  so  far  as 
their  claims  remain  unsatisfied  by  the  assets  in  the  hands  of  his 
executor  or  administrator,  but  no  farther.  And  if  the  assets  be 
deficient,  a  court  of  equity  will  give  the  creditors  relief;  they  will 
make  the  assets  liable,  in  the  first  place,  so  far  as  they  extend, 
after  which  it  will  allow  the  lender  a  limited  time  to  make  good 
the  deficiency,  and  in  defualt  thereof,  a  sale  of  the  slaves. 


(G.)  Br  PRESCRIPTION. 

1. 

BROH   v.   JENKINS.    April   T.    1821.       9   Martin's    Louisiana 

Rep.  526. 

This   suit  is  brought  by  the   plaintiff,  as  heir  to  his  mother,  to  Ifas]ave 


recover  a  slave  named  Lazare.     The  testimony  on  the  part  of  the  be 
plaintiff  is,  that  he   is  the  only  child  of  Madame  Broh  ;  that  the  scription, 
slave  Lazare  belonged  to  her  in  the  year  1803,  when  she   resided  f^iTto 

at  Jeremy,  in  the  island  of  St.  Domingo  ;  that  she  sent  him  to  be  examin- 

ed  accord- 
Charleston  in  that  year;   that  she  died  at  Baracoa,  about  the  end  ing  to  the 

of  1808,  or  begining  of  1809  ;  that  the  plaintiff  was  born  in  1792, 
or  1793,  and  was  consequently  26  or  27  years  old  when  this 
suit  was  commenced.  The  testimony  on  the  part  of  the  acquired. 
defendant  is,  that  Lazare  was  in  possession  of  Mr.  Placide,  in 
Charleston,  about  fourteen  years  before  this  suit  was  commenced, 
where  he  always  remained,  until  sold  to  defendant;  that  Placide 
sold  him  to  Dastras  on  the  2Gth  day  of  May,  1806,  who  possessed 
him,  as  owner,  until  his  death,  in  the  summer  of  1817,  a  term  of 
eleven  years  ;  that  he  was  in  October,  1817,  sold  to  Lazarus;  that 
Lazarus  sold  him  to  defendant,  on  the  2d  of  August,  1819,  in 
Charleston,  South  Carolina.  The  plaintiff  arrived  here  in  1809. 
The  negro  Lazare  was  brought  here  by  the  defendant,  in  the  month 
of  August,  1819,  and  this  suit  was  commenced  the  15th  September, 
in  the  same  year.  The  defendant  sets  up  the  title  of  prescription 
by  virtue  of  possession,  in  himself  and  others,  under  whom  he 
claims,  founded  on  the  several  sales  which  were  produced.  The 
principal  question  in  this  case  was,  by  what  law  will  the  court 
judge  of  the  prescription  :  that  of  South  Carolina,  where  the  slave 
was,  or  that  of  this  state,  where  the  suit  is  brought. 

Porter,  J.     The  presiding  judge  of  this  court  has  gone  so  fully 


96  SLAVERY. 

into  the  case,  in  the  opinion  which  he  has  prepared,  that  I  shall 
confine  my  examination  to  what  I  consider  the  main  question  in 
the  cause,  and  that  is,  whether  the  statute  of  limitations  of  South 
Carolina  has  vested  a  title  to  the  slave  in  the  defendant.  This 
inquiry,  I  think,  will  be  best  conducted,  by  pursuing  the  follow 
ing  divisions  of  the  subject  : — 

1.  Did  the  statute  vest  a  title  in  South  Carolina  1 

2.  Whether  the  owner   of  the  property  is  bound  by  a  law  of 
this  description,  when  it  was  proved  that  he  did  not  reside  in  the 
country  where  it  was  enacted  1 

3.  Supposing  the  title  to  have  been  vested,  in  the  state  where 
the  statute  was  in  force,  is  there  any  thing  in  our  laws  which  pre 
vents  the   defendant  claiming  the  benefit  of  that  title  here  ? 

I.  The  statute  of  South  Carolina  is   an  act  of  limitation,  and 
from  the  perusal  of  it  alone,  it  might  be    doubted  whether  it  was 
any  thing  more  than  a  bar,  which  could  be  plead  by  the  possessor, 
to  an  action  in  which  the  property  was  demanded.     But  it  appears 
that  judicial  interpretation  of  the  act  has  held,  that  it  vests  title  ; 
and  there  is   no  doubt,  from  the  decisions  in  thai  state,  that  there 
the  person  claiming  slaves  under  the   statute  could  recover  them 
in  the   hands  of  another,  as  well  as  plead  the  act   to  an  action 
commenced.    2  Bay's  Rep.  156.  425. 

II.  The  next  point,  whether  the  plaintiff,  not  being  a  citizen,  or 
resident  of  South  Carolina,  can  lose  his  right  to  property  by  a  law 
of  that  country,  is  that  which  has  presented  the  most  difficulty  to 
my  mind.     If  it    had  been  shown  in   this  cause,  that   both  parties 
were  citizens  of  that  state,  I  should  have  no  doubt  that  both  were 
bound  by  these  laws,  in  virtue  of  which  the  one  acquired,  and  the 
other  lost  a  title  to  the  property  ;  and  that  the  right  thus  acquired 
would  not  be  destroyed  by  the  removal  of  one  of  the  parties  into 
another  country. 

It  is  stated  by  Huberus,  an  eminent  writer  on  the  subject,  that 
whoever  makes  a  contract,  in  any  particular  place,  is  subject  to  the 
laws  of  the  place  as  a  temporary  citizen.  3  Dall.  Rep.  370.,  in  note. 
The  rule  is  held  to  apply,  where  a  contract  is  made  in  one  country, 
to  be  executed  in  another,  and  the  law  of  that  where  the  agreement 
is  to  be  performed,  will  form  the  rule  of  action  for  the  parties. 
Now,  although  it  has  not  been  shown,  that  the  plaintiff,  or  those 
under  whom  he  claims,  ever  were  residents  or  citizens  of  South 
Carolina,  or  that  they  made  any  contract  there,  in  relation  to  the 
property  now  sued  for,  yet  enough,  I  think,  has  been  proved  to 


OF  TITLE  TO  SLAVES.  97 

enable  us  to  apply,  safely  and  correctly,  the  principles  of  law  just 
stated,  to  the  case  now  before  the  court.  For  as  the  evidence 
establishes,  that  the  slave  in  question,  was  sent  by  the  plaintiff's 
mother  into  South  Carolina,  under  the  care  of  an  agent,  this  was  a 
voluntary  placing  of  her  own  property  under  these  laws,  to  enjoy 
their  protection  ;  to  take  their  advantages,  if  any  in  relation  to  it ; 
and  consequently,  to  bear  with  their  inconveniences. 

III.   If  the  title  set  up  here  was  by  sale,  donation,  exchange,  or 
any  other  contract  made  in  South  Carolina,  we  should  hold  it  good 
here,  if  it  was  so  in  that  state,  and  the  only  inquiry  would  be,  did  it 
vest  title  there  1     Prescription  is  a  mode  of  acquiring  property. 
Civil  Code,  482.,  art.  32. ;  Pothier,  Traite  de  la  Prescription,  chap. 
1.  As  strictly  so  as  the  cases  of  contracts  just  put.    Digest,  liv.  50. 
tit.  16.  loi,  28.     If  in  a  common  case  of  alienation,  we  hold  it  good 
and  valid,  because  the  laws  of  the  country  where  it  was  made  held 
it  so,  I  cannot  see  any  good  reason  to  reject  that  of  prescription  ; 
for  it  vests  and  devests  title,  by  the  very  same  authority  which  de 
clares  that  other  species  of  contracts  have  that  effect.     In  some  of 
our  sister  states  it  has  been  held,  that  in  a  suit  for  the  recovery  of 
money,  the  law  of  limitation  in  the  state  where  the  suit  is  brought 
must  govern  the  rights  of  the  parties,  and  not  that,  where  the 
contract  was  made.     There  is  a  clear  distinction,  in  my  mind, 
between  cases  of  that  description,  when  the  statute  is  pleaded  as  a 
bar  to  the  demand,  and  that  now  before  the  court,  when  it  vests  a 
complete  title  to  a  specific  thing ;  for  I  have  already  stated,  that  I 
cannot  distinguish  between  the  title  conferred  by  prescription,  and 
that  acquired   by   any  other  mode  of  alienation  and   acquisition. 
When  the  question  does  occur  here  in  a  suit  for  money,  it  will  be 
then  time  enough  to  examine,  whether  the  law  of  this  state,  as  it 
regards  the  limitation  of  actions,  or  that  where  the  parties  contract 
ed  and  hired,  shall  govern  their  rights ;  or  if  the  decisions  on  this  sub- 
ject  can  be  reconciled  with  the  principles  of  law,  or  supported  by 
the  authorities  on  which  they  profess  to  rely.     I  am  therefore  of 
opinion,  that  the  judgment  of  the  parish  court  be  affirmed,  with  costs. 
•Martin,  J.     I  have  carefully  considered  the  opinion  which  Judge 
Mathews  has  prepared,  and  is  about  to  read,  and  perfectly  concur 
with  him. 

Mathews,  J.     This  suit  is  brought  to  recover  from  the  defend 
ant  a  slave  in  his  possession,  claimed  by  the  plaintiff,  as  sole  heir 
to  his  mother,  in  whom  he  alleges  title,  at  the  time  of  her  death. 
The  defendant  relies  on  a  title  derived  through  several  persons  re- 
13 


98  SLAVERy. 

siding  in  South  Carolina,  and  on  a  right  acquired  by  possession 
and  prescription.  Judgment  being  for  the  defendant  in  the  court 
below,  the  plaintiff  appealed.  The  evidence  on  the  part  of  the 
appellants,  which  is  entirely  oral,  establishes  his  heirship,  as  alleged, 
and  shows  that  his  mother  had  the  slave  in  dispute  while  she  resided 
in  the  islands  of  St.  Domingo  and  Cuba,  from  which  latter  place 
she  sent  him  to  South  Carolina.  The  acts  of  sale  offered  by  the 
appellee  to  support  his  title  were  objected  to  by  the  counsel  of  the 
plaintiff,  as  not  being  sufficiently  proven  ;  and  bills  of  exceptions 
regularly  taken  to  the  opinions  of  the  judge  of  the  court,  a  quo,  by 
which  they  were  allowed  to  be  given  in  evidence.  But  from  the 
investigation  which  I  have  given  the  cause,  it  is  deemed  unneces 
sary  to  examine  those  exceptions ;  as  the  testimony,  received  with 
out  opposition,  clearly  establishes  an  uninterrupted  and  peaceable 
possession,  of  at  least  fifteen  years'  duration,  in  the  persons  under 
whom  the  defendant  claims.  Admitting  that  the  evidence  in  the 
case  draws  title  in  the  ancestor  of  the  appellant,  and  that  the  de 
fendant's  claim  rests  solely  on  a  title  vested  in  those  under  whom 
he  holds  the  slave,  acquired  by  prescription  ;  the  first  question  to 
be  disposed  of,  as  stated  by  the  plaintiff's  counsel,  is,  by  what  laws 
must  the  cause  be  decided,  in  relation  to  the  title  set  up  by  the 
appellee  ?  Those  of  South  Carolina,  where  the  property  was,  or 
those  of  this  state,  where  the  suit  is  commenced  ?  I  am  of  opin 
ion,  that  the  validity  of  this  title,  by  prescription,  ought  to  be  ascer 
tained  and  determined  according  to  the  laws  of  the  former  state. 
Were  it  to  be  settled  by  our  laws  on  the  subject,  there  would  be 
little  difficulty  in  deciding  the  case,  as  they  would  not  operate  on 
the  slave  in  dispute,  previous  to  his  having  been  brought  within  the 
limits  of  the  state.  And  this  did  not  happen,  as  is  shown  by  the 
record,  until  a  month  or  two  before  the  commencement  of  the 
present  action.  The  law  of  South  Carolina,  on  which  the  defend 
ant  rests  his  title,  is  a  statute  of  limitations,  prescribing  the  period 
within  which  suits  may  be  rightfully  commenced  in  that  state, 
having  for  their  object  and  end,  the  same  which  is  here  sought  by 
the  plaintiff.  The  period  of  limitation  is  there,  four  years  for  per 
sons  present,  and  one  more  is  allowed  to  those  who  are  absent, 
making  five  for  the  latter,  and  by  the  lapse  of  this  time  their  right 
of  action  is  barred.  It  is  contended,  on  the  part  of  the  appellant, 
that  this  law  must  be  considered  as  relating  only  to  the  remedy,  or 
relief  grantable  by  the  courts  of  justice,  and  not  to  the  right  of 
property.  In  other  words,  that  it  is  lexfori,  and  not  lex  loci  contractus; 


OF  TITLE  TO  SLAVES.  99 

and  that  to  the  former  species  of  laws,  a  foreign  tribunal  will  give 
no  effect.  So  far  as  thay  relate  to  the  recovery  of  debts,  from  the 
cases  cited  in  support  of  this  doctrine,  little  doubt  can  remain  of 
such  being  the  practice  adopted  by  the  courts  in  several  states  of 
the  union,  and  supported  by  the  opinions  of  judges  higly  eminent 
for  talents  and  learning.  Without  admitting  or  denying  the  cor 
rectness  of  these  decisions,  as  founded  in  justice,  policy,  and  a 
proper  comity  between  the  states,  I  think  the  case  now  under  con 
sideration  may  be  clearly  distinguished  from  any  which  have  been 
exhibited  to  the  court.  The  questions  in  them  decided,  turned 
wholly  on  disputes  about  privileges,  or  a  right  to  recover  debts, 
barred  by  the  laws  of  limitation  which  were  in  force,  in  the  former 
residence  of  the  contracting  parties  ;  and  such  laws  are  based 
solely  on  a  presumption  of  payment.  In  no  instance  was  there 
any  contest  relative  to  rights  or  title,  vested  in  the  possessor  of  pro 
perty,  as  a  neccessary  consequence  resulting  from  a  statute  of  limi 
tations,  which  barred  the  claim  of  the  owner.  Whatever  might  be 
my  opinion  as  to  the  force  and  effect  which  ought  to  be  given  to 
the  laws  of  limitation  of  a  foreign  state,  in  relation  to  the  recovery 
of  debts,  I  have  no  doubt  they  may  become  the  means  of  acquiring 
title,  when  they  operate  so  as  to  prevent  the  proprietor  from  reco 
vering  his  property  in  consequence  of  an  adverse  possession. 

Possession  of  things  is  prima  facie  evidence  of  right  and  title  to 
them  ;  and  if  it  has  been  of  such  duration,  that  the  laws  of  the 
country  where  they  are  situated  will  not  allow  the  possession  to  be 
disquieted,  I  do  not  think  it,  by  any  means,  a  forced  and  unfair 
c  onstruction  of  law,  to  decide,  that  title,  absolute  and  indefeasible, 
is  gained  by  such  possession.  The  owner,  by  neglecting  to  use 
the  remedy  accorded  to  him,  loses  his  right,  which  the  bona  fide 
possessor  acquires.  It  is  perhaps  true,  that  fraud  on  his  part,  or 
excusable  ignorance  on  the  part  of  the  proprietor,  might  require  a 
different  interpretation  and  application  of  the  law  of  limitation. 
But  in  the  present  case,  it  cannot  be  pretended  that  either  of  them 
existed.  The  evidence  shows  that  good  faith  accompanied  the 
possession  of  the  slaves  in  every  change  of  master  ;  and  that  he 
was  sent  by  the  plaintiff's  mother  to  South  Carolina ;  so  that  she 
could  not  be  ignorant  of  the  laws  under  which  he  was  placed,  and 
her  means  of  redress  against  adverse  possessors. 

This  view  of  the  subject  places  a  law  of  limitation  to  an  action 
for  the  recovery  of  property,  on  a  footing  with  the  usucapio  of  the 
Roman  system  of  jurisprudence,  viz.  a  mean  of  acquiring  property ; 


100  SLAVERY. 

nor  am  I  able  to  discover  any  incongruity  in  the  principles  on 
which  these  rules  are  founded.  Usvcapio  is  defined  in  the  Roman  Di 
gest  to  be  adjectio  dominii  per  continuationem  posse$sionis}  temporis 
lege  definili. — It  was  introduced  for  the  public  good,  that  the  titles 
of  property  might  not  forever  remain  uncertain,  after  allowing  suf 
ficient  time  to  the  owners  to  pursue  their  claims.  D.  41.  3.  1. 

In  the  early  periods  of  states,  it  maybe  considered  sound  policy  to 
make  the  time  for  acquiring  property  by  possession  of  short  duration. 
By  the  ancient  Roman  law,  as  contained  in  an  article  of  the  Twelve 
Tables,  one  year  of  possession  was  sufficient  to  save  title  to  movc- 
ables,  and  two  toimmoveables,  being  what  were  termed  res  mancipii. 
In  regard  to  incorporeal  things,  the  Prcetor  had  established  a  prescrip 
tion  of  ten,  and  twenty  years,  or,  as  it  is  called,  longi  temporis.  At 
first,  under  this  prescription  the  possessor  did  not  acquire  the  domi 
nion  of  the  thing,  but  only  the  benefit  of  an  exception,  or  plea  in  bar, 
to  any  action  brought  by  the  proprietor.  Afterwards,  the  actio  utilis 
was  accorded  to  the  possessor  to  recover  the  thing,  when  he  had 
lost  the  possession,  pour  revendiquer  le  chose,  as  expressed  by  Po- 
thier.  The  distinction  between  res  mancipii  and  nee  mancipii,  was 
abolished  by  the  emperor  Justinian,  and  usucapio  and  prescription 
longi  temporis  put  on  the  same  footing  ;  this  constitution,  on  this 
subject,  it  is  believed,  forms  the  basis  of  the  laws  relating  to  pre 
scription  in  those  countries  which  have  founded  their  jurisprudence 
on  the  Roman  law  ;  and,  in  all  of  them,  it  is  considered  a  mode  of 
acquiring  property.  But  it  is  seen,  that  even  before  this  law  of 
Justinian,  an  action  had  been  accorded  to  a  possessor  to  recover 
property  of  which  he  had  lost  possession  ;  and  this  could  only 
have  been  regular,  on  the  principle  that  he  had  acquired  title  by 
such  possession.  Upon  the  whole,  I  am  of  opinion,  that  laws  lim 
iting  the  time  within  which  actions  ought  to  be  commenced  for  the 
recovery  of  property,  may  operate  in  such  a  manner  as  to  vest  a 
title  in  a  bona  fide  possessor,  and  that  the  law  of  South  Carolina 
has  produced  this  effect  in  the  present  case.  Judgment  affirmed, 
with  costs. 


2. 

DUNBAR   v.  NICHOLS.    July  T.   1S21.     10  Martin's  Louisiana 

Rep.  184. 


A   party 
eli« 


who  relies       Martin,  J.    The  plaintiff  demands  a  recision  of  the  sale  of  a  slave 

scription      he  bought  from  the  defendant,  on  account  of  her  having  been  attack- 
must  plead 


OF  TITLE  TO  SLAVES.  10L 

ed  with  an  incurable  disease  at  the  time  of  the  sale/  She  being  dead  Jt-    The 

•  mi  want    of  a 

since,  the   defendant  pleaded  the  general  issue  only.     There  was  plea  can- 
a  verdict  and  judgment  for  him,  and  the  plaintiff  appealed. 

Our  attention  is  first  arrested  by  a  bill  of  exceptions  to  a  part 
of  the  judge's  charge,  in  which  he  said,  that  "  in  the  opinion  of  the 
court,  the  plaintiff  was  not  founded  in  his  right  of  action,  not  hav 
ing  filed  his  petition  within  six  months  after  the  discovery  of  the 
disease."  The  law  has  provided  defendants  with  the  plea  of  pre 
scription,  that  they  may  use  it  as  a  shield  to  protect  themselves 
against  unjust  claims,  not  to  use  it  as  a  weapon  to  destroy  just 
rights.  The  party  who  uses  it  in  an  unrigheous  case,  sins  gre- 
viously,  and  the  court  neither  can  or  ought  to  supply  the  want  of 
it,  ex  offitio.  \Vhen  the  plea  is  not  made,  the  presumption  is,  that 
the  defendant  thinks  it  would  not  avail  him  at  all,  and  that  he  can 
not  righteously  avail  himself  of  it.  The  district  court,  in  my  opi 
nion,  erred,  in  directing  the  jury  to  disregard  the  plaintiffs  right,  on 
the  ground  that  it  was  exercised  too  late,  and  I  think  the  judgment 
ought  to  be  reversed, 

Mathew8,  J.     I  concur  in  this  opinion.     Judgment  reversed. 

3. 

DELPHINE  v.  DEVEZE.   June  T.  1824.     14  Martin's  Louisiana 

Rep.  650. 

Per  Cur.     Porter,  J.     The  plaintiff  urges,  she  is  descended  from  P'escrip- 

7  tion  is  ne- 

one  Marie  Catherine,  a  negro  woman  now  deceased,  who  was  the  ver  plead- 
slave  of  a  certain  Marie  Durse,  and  that  the  said  Marie  emancipa-  claim  ^f  a 
ted,  and  set  free,  Catherine,  and  her  children,  Florence,  Luce,  ireedom- 
and  Cathenine,  the  mother  of  the  petitioner.  She  complains  that 
the  defendant  illegally  holds  her  in  slavery,  and  prays  that  she 
may  be  decreed  free,  and  recover  damages  for  the  injury  she  has 
sustained  by  being  held  in  servitude.  The  defendant  pleaded  the 
general  issue,  and  prescription.  We  shall,  before  entering  on  the 
merits,  dispose  of  the  exception,  which  forms  the  second  ground 
for  defence  in  the  defendant's  answer.  We  do  so,  by  referring  to 
the  third  partida,  title  twenty-nine,  law  twenty-four,  in  which  we 
find  it  provided,  that  if  a  man  be  free,  no  matter  how  long  he 
may  be  held  by  another,  as  a  slave,  his  state  or  condition  cannot 
be  thereby  changed,  nor  can  he  be  reduced  to  slavery,  in  any  man 
ner  whatever,  on  account  of  the  time  he  may  have  been  held  in 
servitude.  The  plaintiff  is  entitled  to  her  freedom. 


102  SLAVERY. 

4. 

CHRETIEN  v.  THEARD.     June  T.  1824.     14  Martin's  Louisiana 

Rep.  582. 

Preserip-          Per  Cur.     Porter,  J.     This  is  a  redhibitory  action,  in  which  the 
teruptedby  plaintiff  seeks  to  return  a  slave  he  purchased  from  the  defendant, 

fn   which*  and  &et  back  the  Price-     The  defect  alledged  is,  that  the  slave  is 
the  plain-     a  thief,  and  addicted  to  robbery,  and  it  is  further  charged,  that  the 

tin  is  non 
suited,         vendor  knew  he  had  those  vices  at  the  time  he  sold  him.      An 

action,  founded  on  the  same  cause  as  the  present  one,  has  been  al 
ready  before  us.  11  Martin,  11.  The  plaintiff  was  there  non 
suited,  because  he  had  not  furnished  proof  that  he  brought  suit 
within  six  months  after  he  obtained  the  knowledge  of  the  defect. 
The  present  record  shows,  that  he  fully  removed  this  objection. 
Several  grounds  of  defence  have  been  presented  in  this  court 
against  the  right  of  the  petitioner  to  recover.  The  last  point  is 
that  of  prescription.  On  this  head  the  counsel  for  the  defendant 
referred  to  several  authors  who  have  written  on  the  French  law. 
According  to  them,  prescription  is  not  interrupted  by  a  suit  in 
which  the  plaintiff 's  demand  is  rejected;  nor  where  there  is  a 
voluntary  abandonment  of  the  action.  Pandecte  Francises,  vol.  7. 
581,  582.  Dunod,  Traite  de  Prescription,  92.  ;  Denissart,  vol.  3. 
740.  It  is  unnecessary  for  us  to  go  into  the  question,  how  the  law 
stands  in  that  country,  or  to  inquire  how  much  of  the  doctrine  on 
which  the  appellant  relies,  depends  on  provisions  particular  to  the 
French  jurisprudence.  By  that  of  Spain,  greater  facilities  were 
afforded  the  creditor  to  interrupt  prescription.  According  to  the 
3d  partida,  title  29.  law  29.,  a  simple  demand  of  the  debtor,  in  the 
presence  of  witnesses,  was  sufficient.  Why  an  action  in  a  court  of 
justice,  although  not  followed  up  to  any  final  judgment,  should  not 
have  as  much  effect  as  a  simple  request,  which  is  not  succeeded  by 
a  suit,  is  not  perceived  by  us.  Admitting,  however,  that  it  has  not, 
another  provision  of  the  law  already  cited,  declares,  that  prescrip 
tion  is  interrupted  by  a  suit,  and  we  find  nothing  in  that  law  which 
makes  any  exception,  or  which  goes  to  show  that  this  interruption, 
which  is  declared  to  result  from  a  demand  in  justice,  loses  effect, 
because  the  action  is  not  prosecuted  to  final  judgment.  Prescrip 
tion,  says  this  law,  ceases  to  run  from  the  time  suit  is  brought.  Of 
this  opinion  must  have  been  the  compilers  of  our  code,  for  in 
transcribing  into  it  the  provisions  of  the  Code  Napoleon,  on  the 


OF  TITLE  TO  SLAVES.  103 

subject  of  prescription,  they  omitted  inserting  the  article  2247, 
which  declares,  that  if  the  plaintiff  desist  from  his  suit,  or  if  his  de 
mand  be  rejected,  prescription  will  not  be  interrupted. 

5-  The    latter 

PETERS  v.    CHARES.     March  T.  1833.   4  Yerger's  Tennessee  the^third 

Rep.  176.  ^ctionf  °J 

the    act   of 

Per  Cur.     Green,  J.    The  latter  clause  of  the  3d  section  of  the  25.  only  ap- 
act  of  1801,  ch.  25,  declaring  valid   all  loans  bona  fide,  £c.,  &c., 


must  be  taken  as  applying  only  as  between  the  persons  receiving  j(  mor  and 
and     making    a    loan  of    property.       Any   other    construction  therefore, 
would   make  this  provision  inconsistent  with  the  plain  meaning  of 
the  latter  clause  of  the  second  section  of  the  same  act.     The 


As  to  this  creditor,  the  property  was  with  the  possession.     Inde-  almough 
pendently  of  this  question,  the  jury  were  justified,  from  the  evidence,  loan,  vests 


negroes  in  question,  were  in  the  possession  of  Daniel  Brown,  more  not  decla- 
than  five  years  before  the  boy  Robert  was  levied  on.  The  loan  Or  by  writ- 
was  not  declared  by  will,  or  by  deed  in  writing  proved  and  recorded. 
As  to  this  creditor,  the  property  was  with  th 
pendently  of  this  question,  the  jury  were  justifie 
to  find  the  verdict  they  rendered  in  this  cause. 

creditors, 
with     the 
loanee. 
6. 

METAYER  v.  METAYER.  Jan.   T.  1819.     6  Martin's  Louisiana 

Rep.  16. 

Derbigny,  J.,  delivered  the  opinion  of  the  court. 

The  defendant,  Adelaide  Mefayer,  a  woman  of  color,  is  in  pos-  A  slave 

r  ,          .         ,  c  r          who  enjoy- 

session  of  her  freedom,  since  a  number  of  years.     A  person  who  ed  her 


calls  himself  her  master,  now  sues  to  make  her  return  to  a  state  of 
slavery.     It  was  at  first  doubted,  whether  the  plaintiff  had  proved  durins  the 
himself  to  be  the  same  individual  whom  the  witnesses  call  the  only  tion,    may 
son  and  heir  of  Charles  Metayer  of  Cape  Francois,  who  was  the  Jime  in  es- 
master  of  the  defendant,  when  the  revolution  of  Hispaniola  broke  Jer^iinc 
out.     But,   after  an  attentive  perusal  of  the  record,   it  is  now  freedom  by 
believed,  that  the  plaintiff  is  sufficiently  identified  with  Metayer's  tion. 
son.     The  defendant  pleads,  in  general   terms,  that  she  is  free. 
She  has  failed  in  a  former  suit,  where  she  was  plaintiff  in  damages 
for  false  imprisonment,  (Metayer  v.  Noret,  5  Martin's  Rep.  566,) 
to  prove  her  freedom  by  emancipation  under  her  master's  hand  ; 
but  the  evidence  in  the  present  case  shows  that  she  was  in  His 
paniola  when  the  general  emancipation  was  proclaimed  by  the 
commissioners  of  the  French  government,  and  remained  there 


104  SLAVERY. 

until  after  the  evacuation  of  the  island  by  the  French  in  1  803,  a 
period  of  about  ten  years.  It  is  further  proved,  that  she  continued 
in  the  enjoyment  of  her  freedom,  without  interruption,  until  1816  ; 
so  that  she  has  lived  as  a  free  person  during  twenty-three  years  ; 
that  is  to  say,  three  years  more  than  the  time  required  by  law  for 
a  slave  to  acquire  his  freedom  by  prescription,  in  the  absence  of 
his  master.  The  plaintiff  objects,  that  the  time  during  which  the 
defendant  remained  in  Hispaniola,  ought  not  to  be  included  in  this 
calculation,  because  the  abolition  of  slavery  in  that  island  was  an 
act  of  violence,  and  that  prescription  does  not  run  against  those 
who  have  been  so  dispossessed,  so  long  as  they  are  prevented  from 
claming  their  property,  according  to  the  maxim,  Contra  non 
valentem  agere  nulla  currit  pescriptio.  But  the  plaintiff  cannot 
avail  himself  of  this  exception,  without  admitting,  at  the  same 
time,  that  the  government  of  Hispaniola,  during  its  divers  revolu 
tions,  continued  to  countenance  the  general  emancipation  ;  and 
then,  instead  of  the  simple  fact  of  possession,  the  right  of  the  defend 
ant  to  her  freedom  by  law,  would  be  the  consequence  ;  for,  if  the 
abolition  of  slavery  by  the  commissioners  of  the  French  republic 
has  been  maintained  by  the  successive  governments  of  the  island, 
no  foreign  court  will  presume  to  pronounce  that  unlawful  which, 
through  a  course  of  political  events,  has  been  sanctioned  by  the 
supreme  authority  of  the  country.  Therefore,  without  entering 
into  this  very  delicate  subject  any  farther  than  the  present  case 
makes  it  strictly  necessary,  we  are  bound  to  say,  at  least,  that,  by 
virtue  of  the  general  emancipation,  the  defendant  enjoyed  her 
freedom  in  fact,  no  matter  under  what  modification  ;  and  that  the 
years  which  she  passed  at  Cape  Francois,  in  that  situation,  must 
be  included  in  the  time  during  which  she  did  not  live  in  a  state  of 
slavery  ;  which  time,  at  the  lowest  calculation,  exceeds  that  which 
is  required  by  law  for  a  slave  to  prescribe  his  freedom  in  the  ab 
sence  of  his  master.  Judgment  affirmed. 

7. 

METAYER  v.    NORET.   June    T.    1818.   5   Martin's   Louisiana 

.  566. 


session    of         n        ~ 

freedom,  in  rer  Lur.  JJubigny,  J.  The  plaintiff,  and  appellee,  is  a  woman 
c/tte8ma£  °^  color>  wno  complains  of  having  been  arrested  and  imprisoned  as 

edr'  foT'the  a  Slave  by  the  aPPellant>  antl  sues  nirn  for  damages.  The  fact  of 
timeofpre-  the  arrest  and  imprisonment  is  admitted  ;  but  the  defendant,  and 
scriti. 


scription. 


OF  TITLE  TO  SLAVES.  105 

appellant,   contends,  that  the   plaintiff  is  the  slave  of  Jean  Pierre 
Mstayer,  whose  attorney  in  fact  he  shows  himself  to  be.     The  only 
question  at  issue  between  the  parties  is,  whether  the  plaintiff  is  a 
free  person  or  a  slave.     Jean  Pierre  Mstayer  has  intervened  in  the 
suit ;  but,  as  that  intervention  changes  not  the  situation  of  the  case, 
there  is  no  necessity  to  notice  it.     It  is  admitted,  on   both  sides, 
that  the  plaintiff  once  was  the  slave  of  Charles  Metayer,  the  father 
of  the  person  in  whose  behalf  the  defendant  caused  her  to  be  ar 
rested.     But  the  plaintiff  maintains  that  she  has  been  enfranchised 
by  him.     The   evidence,   however,  which  she  has   introduced  in 
support  of  that  allegation,  is  of  such  a  nature  that  it  would  be  nu 
gatory  to   investigate  it.     One  only  circumstance  deserves  some 
notice  ;   and  that  is,  her  enjoyment  of  her  freedom  during  a  num 
ber  of  years.     It  is  in  evidence  that  the  plaintiff,  ever  since  she 
left  Cape   Francois,  in  1803,  has  lived  as  a  free   person,  first  at 
Bara^oa,  in  the  Island  of  Cuba,  and  from  the  year  1809  at  New 
Orleans.     A  creditor  of  her  late  master  caused  her  to  be   seized 
in  1810,  as  the  property  of  his  debtor  ;    but  a  civil  interruption  of 
possession  can  take  place  only  at  the  suit  of  the  owner ;  and  this 
interruption  by  the  owner  did  not  happen  until  some  time  in  the 
year  1816 ;  that  is  to  say,  after  a  possession  of  about  thirteen  years. 
By  the  laws  of  Spain,  a  slave  can  acquire  his  freedom  by  a  posses 
sion  often  years,  in  the  presence  of  his  master,  or  of  twenty  years 
in  his  absence.     It  appears  in  this  case,  that  during  all  the  time 
that   the  plaintiff  enjoyed  her  freedom,  the  master  was  absent 
Thus,  according  to  the  Spanish  laws,  the  possession  of  the  plaintiff 
falls  far  short  of  the  time  required  to  prescribe.     It  was  doubted 
whether  that  disposition  of  the  Spanish  laws  had  not  been  repealed 
by  the  general  provision  introduced  in  our  code,  concerning  the 
prescription  of  slaves.     But,  it  is  believed,  that  this  article  of  our 
code  is  relative  only  to  the  acquisition  of  slaves   by   prescription, 
and  cannot  be  construed  to  embrace  the  prescription  of  liberty  by 
themselves.     We   are,  therefore,  bound  to  say,  that  the  plaintiff 
has  not  succeeded  to  prove  her  freedom,  and  that  she   cannot  re 
cover  any  damages  for  what  she  calls  her  unjust  imprisonment 
and  detention. 


14 


106  SLAVERY. 

8. 

ANDREWS  v.  HARTSFIELD  et  al.     March  T.  1832.    3  Yerger's 
Tenn.  Rep.  39. 

A  loan'  of  In  1812,  William  B.  Walker  married  a  daughter  of  the  corn- 
married  plainant.  In  1814,  the  complainant  loaned  to  his  daughter,  the 
-  wife  °f  said  W^ker,  the  slave  in  controversy.  He  stated  at  the 


session  is     time,  that  he  loaned  the  slave  solely  to  her,  for  her  sole  use,  and 

continued 

for  five  independent  of  the  control  of  the  husband.     The  loan  was  gene- 

upward  ra^>  known  in  the  neighborhood,  and  was  considered  the  property 

t^slaves  °^  comPlainant-     The  slave  remained  in  the  possession  of  Mr.  and 

under   the  Mrs.  Walker  from  1814  until  1828,  during  which  time  she  had  two 

act  of  1801,      .... 

ch.  25.  sec.  children.  They  were  in  that  year  levied  on,  and  were  about  to 
fevie'd  on  be  sold  to  satisfy  tne  debts  of  tne  husband,  when  this  bill  was  filed 
and  sold  to  enjoin  the  sale.  The  bill  was  dismissed  by  the  court  below. 

for    the  J 

debts  ofthe  Per  Cur.  Green,  J.  It  is  proved  by  the  complainants'  witness 
es  (his  two  sons,)  that  they  were  present  in  1814  when  their 
father  lent  the  girl  Tiller  to  their  sister  Mary.  He  told  her 
to  take  the  girl  to  nurse  her  child  ;  to  take  good  care  of  her,  and 
keep  her  until  he  called  for  her.  The  girl  went  into  the  posses 
sion  of  Walker,  and  so  continued  without  interruption,  until  these 
attachments  were  levied  upon  her,  a  period  of  fourteen  years.  By 
the  act  of  1801,  ch.  25.  sec.  2.,  the  reservation  of  title  by  the  com 
plainant,  as  to  the  creditors  of  Walker,  is  fraudulent  and  void  ; 
the  loan  not  having  been  declared  by  deed,  and  the  possession 
having  continued  without  interruption  more  than  five  years.  The 
third  section  of  this  act  does  not  affect  the  question.  That  only 
applies  as  between  the  lender  ancj  borrower,  and  saves  the  right 
of  the  former  to  reclaim  and  recover  the  property  loaned.  The 
title  of  this  negro  must,  therefore,  be  regarded,  as  to  these  defend 
ants,  with  the  possession.  It  is  not  necessary  here  to  decide, 
whether  a  gift  by  parol,  of  personal  property,  to  the  seperate  use 
of  a  married  woman,  would  be  good.  This  is  the  ordinary  case 
of  a  loan  to  the  married  daughter,  reserving  the  title  in  himself. 
Walker  was  the  possessor  of  the  negro,  and  no  matter  what  the 
parties  may  have  intended,  or  how  notorious  the  complainant's 
claim  of  property  may  have  been,  the  statute  is  peremptory,  and 
declares  that  as  to  creditors  the  title  shall  be  considered  with  the 
possession.  Decree  affirmed. 


OF  WARRANTY.  107 

(VII.)  OF  WARRANTY.* 
(A)  Or  WARRANTY  OF  SOUNDNESS; 

1. 

THOMPSON   v.    MILBURN  et  al.     Aug.  T.  1823.      13  Martini 

Louisiana  Rep.  468. 

Per  Cur.     Porter,  J.     The  petitioners  sue  to  obtain  the  price  Any  disease 
of  a  slave.     The  defendants  resist  the  demand,  on  an-allegation  ^sla^e  "is 


that  the  negro  was  unsound,  and  afflicted  with  redhibitory  diseases, 
incurable  in  their  nature,  at  the  time  they  purchased  him  ;  of  which  sale,  which 
diseases  he  died.  Two  gentlemen  of  the  faculty,  who  were  called  gassed  so 
on  a  consultation  on  the  negro,  five  weeks  after  the  sale,  and  a  f 


short  time  previous  to  his  death,  state,  that  they  found  him  labor-  may   be 

pleaded   as 

mg  under  a  chronic  dysentery  of  long  standing  ;    a  disease,  which,  aredhibito- 
though  it  may  sometimes  be  cured  by  proper  regimen,  generally  *?  vice> 
terminates  in  death.     Three  other  witnesses  state,  that  the  negro 


*  A  warranty,  is  an  indemnity  against  the  consequences  of  any  defect  in  the  quality 
or  value  of  the  thing  sold.  And  a  representation  made  at  the  time  of  sale  is  a  war 
ranty,  if  so  intended.  Pasley  v.  Freeman,  3  T.  Rep.  57.  In  general,  no  implied  war 
ranty  arises.  Parkinson  v.  Lee,  2  East's  Rep.  314.,  unless  there  be  a  fraudulent  con 
cealment.  Jones  v.  Rouden,  4  Taunt.  Rep.  847.  And  whether  there  is  a  warranty 
or  not,  should  be  submitted  to  the  jury.  Whitney  v.  Sutton,  11  Wend.  Rep.  411. 
Some  of  the  principles  of  warranty  may  be  thus  stated.  Warranty  is  an  indem 
nity  for  any  defect  in  the  thing  sold,  as  was  before  stated.  And  they  are 
express  or  implied.  Borrekens  v.  Berons,  et  al.,  3  Rawle's  Rep.  32.  And  all 
warranties  must  be  made  at  or  before  the  sale.  Sweet  v.  Colgate,  20  Johns.  Rep. 
195.  Warranties  are  limited,  and  do  not  guard  against  that  which  may  be  discovered 
by  sight,  as  if  a  horse  be  warranted  perfect,  and  he  wants  an  ear  or  tail  Butterfield  v. 
Burroughs,  Salk.  Rep.  211.  And  it  may  be  laid  down  as  a  general  rule,  that  the  ven 
dor  is  not  liable  for  the  quality  or  soundness  of  the  goods  or  article  sold,  unless  there 
be  an  express  warranty,  or  a  fraudulent  concealment  or  misrepresentation.  Wilson 
v.  Shackford,  4  Rand.  Rep.  5. ;  Williams  v.  Stafford,  8  Pick.  Rep.  250  ;  Sweet  v.  Col 
gate,  20  Johns  Rep.  196.  The  exception  in  the  United  States,  is,  in  South  Carolina*- 
where  they  have  adopted  the  civil  law,  which  is  governed  by  the  maxim  that  "  a 
sound  price  requires  a  sound  commodity."  Barnard  v.  Yates,  1  Nott  &  M'Cord, 
142.;  Timrod  v.  Sholbred,  1  Bay's  Rep.  324.  An  express  warranty  of  soundness  ex 
tends  to  every  kind  of  soundness,  known  and  unknown  to  the  seller,  and  if  it  be 
false,  the  buyer  has  his  remedy  on  the  warranty.  Onslow  v.  Eames,  2  Stark  N.  P.  C. 
81.  And  where  there  is  an  express  warranty,  all  implied  warranties  are  excluded ; 
for  the  law  will  not  imply  what  is  not  expressed  in  a  formal  contract.  Lanier  v.  Auld, 
1  Murphy's  Rep.  133. 


108  SLAVERY. 

was  unwell  immediately  after  the  purchase.  One  called  by  the 
plaintiff  declared  that  the  negro  had  been  afflicted  with  the  diarrhoea, 
some  time  previous  to  the  period  when  the  defendant  purchased 
him  ;  that  the  physician  who  attended  him  had  reported  him  well, 
and  that  he  had  quite  a  healthy  appearance  when  sold.  That  section 
of  the  civil  code  which  treats  of  the  defects  in  the  thing-  sold,  and  red- 
hibitory  vices,  is  by  no  means  the  most  clear  and  satisfactory  of  that 
work;  and  since  its  enactment,  several  embarrassing  questions  aris 
ing  out  of  its  provisions,  have  been  presented  for  decision.  It  is  now, 
however,  the  settled  doctrine  in  this  court,  that  by  the  term  "  dis 
ease  incurable  in  its  nature,"  must  be  understood  any  disease  of 
which  the  slave  is  afflicted  at  the  time  of  the  sale,  that  has  pro 
gressed  so  far  as  to  be  incurable.  Our  only  inquiry,  then,  is,  do 
the  facts,  as  proved  in  evidence,  bring  this  case  within  the  rule  1 
The  testimony  already  detailed,  appears  to  us  to  show  beyond 
doubt,  that  the  negro  was  diseased  OH  the  day  of  the  sale.  The 
evidence  of  the  physicians  satisfies  us  that  it  was  of  that  disease  he 
died.  Whether  it  had  progressed  so  far  as  to  be  rendered  incura 
ble,  is  the  main,  and,  indeed,  the  only  difficulty  which  the  case  pre  * 
sents.  The  fact  is  not  placed  beyond  all  doubt  by  the  testimony, 
nor  can  human  testimony  ever  establish,  beyond  doubt,  at  what  pe 
riod  a  disease  is  incurable,  unless  the  persons  who  give  it  are 
acquainted  with  all  the  means  of  cure  which  human  knowledge 
possesses.  We,  however,  have  it  in  evidence  here,  that  the  slave 
sunk  under  the  disease,  and  it  is  such  as  is  generally  incurable. 
This  we  think  sufficient  to  throw  the  burthen  of  proof  on  the  other 
side,  and  the  defendant,  aware  that  it  did,  has  labored  to  show,  that 
the  fact  of  the  disease  being  incurable,  clearly  resulted  from  the  tes 
timony.  But  in  this  he  has  completely  failed.  The  evidence,  so  far 
from  establishing  the  curableness  of  the  disease,  is  entirely  silent  in 
regard  to  it.  To  supply  the  place  of  proof,  the  defendant  has  re 
sorted  to  conjecture,  and  has  contended,  that  we  do  not  know  but 
that  if  a  physician  had  been  called  in  earlier,  the  life  of  the  slave 
might  have  been  saved.  We  do  not  know  what  effect  an  earlier 
application  to  medical  aid  might  have  had,  and  for  that  very  reason 
we  cannot  give  the  plaintiff  the  benefit  of  a  fact  which  he  has 
never  proved.  In  the  case  of  St.  Rome  v.  Pore,  the  same  argu 
ment  was  resorted  to,  and  was  considered  of  no  weight.  The 
ourt  there  held,  that  it  lay  on  the  vendor  to  show  that  the  disease 
of  which  the  slave  died  might,  under  a  different  course  of  treatment, 
have  been  cured.  10  Martin's  Rep.  215.  Every  thing  in  this  case 
rebuts  the  presumption  that  the  disease  would  have  yielded  to  medi- 


OF  WARRANTY.  109 

cine,  nor  do  we  see  that  there  was  such  negligence  on  the  part  of 
the  vendee  as  to  deprive  him  of  what  we  conceive  a  just  and  con 
scientious  defence.  As  was  said  in  the  case  just  cited,  physicians 
are  frequently  not  resorted  to  until  family  medicines  fail.  The 
right  of  purchasers  to  resist  the  payment  of  an  object  which  turns 
out  to  be  of  no  value,  should  not  be  made  to  depend  on  their  medi 
cal  skill  ;  on  their  knowledge  that  a  disease  on  its  first  appearance 
is  a  dangerous  one  ;  and  that  recourse  must  be  instantly  had  to 
professional  men.  That  of  which  the  slave  died  we  know  to  be 
one  that  is  slow  in  its  progress,  and  not  apt,  in  its  incipient  stages, 
to  excite  much  alarm.  The  jury  have  found  that  the  negro  was, 
at  the  time  of  sale,  afflicted  with  an  acute  dysentery.  We  see 
nothing  in  the  evidence  to  support  the  conclusion.  Taking  it  to 
be  correct,  it  would  not  affect  the  decision  of  the  case.  Judgment 
affirmed. 

2. 

THOMPSON  v.  MILBURN.     Aug.  T.  1823.     13  Martin's  Loui 
siana  Rep.  468. 

Per  Cur.     Porter,  J.     The  petitioners  sue  to  obtain  the  price  Redhibito- 
of    a  slave.     The   defendants   resist   the   demand,    on   an   alle- 


gation  that  the  negro  was  unsound,  and   afflicted  with  redhibitory  ma7   be  f 

•  af- 


diseases,  incurable  in  their  nature,  at  the  time  they  purchased  ter  twelve 
him  ;  of  which  diseases  he  died.  The  sale  took  place  in  the  month  defence  of 
of  August.  1819,  and  this  action  was  commenced  the  fust  of  No-  fn  aictl*?n 

brought  for 

vember,  1820.  The  plaintiff  contends,  that  the  defendants  cannot  the  price, 
avail  themselves  of  the  defence  set  up,  as  twelve  months  have 
elapsed  from  the  time  of  the  purchase.  The  article  of  our  code, 
which  directs  that  the  action  of  redhibition  must  be  brought  in 
one  year  at  farthest  from  the  date  of  the  sale,  can  only  receive  an 
application  in  cases  where  the  vendee  is  plaintiff,  and  brings  an 
action.  It  leaves  untouched  the  right  to  offer  the  want  of  consi 
deration  as  a  defence  against  paying  the  price  agreed  on.  The 
rule  is,  "  Loque  tiene  tiempo  limitado  para  demandarse  in  juicio, 
es  perpetuo  para  exceptionarse."  Febrero.  p.  2.  lib.  3.  cap.  1. 
sec.  6.  no.  250. 


110  SLAVERY. 

3. 

CHRETIEN  v.  THEARD.  Feb.  T.  1822.     11  Martin's  Louisiana 

Rep.  11. 


In  an  action  ^er  ^ur-  Porter,  J.  This  action  was  commenced  to  obtain 
toobtamre-  recis;on  of  the  sale  of  a  negro  slave,  called  La  Fortune,  sold  as  a 
the  sale  of  carpenter  and  joiner,  for  the  price  of  $1500.  It  is  alleged  that 
common-  he  is  neither;  and  in  addition,  is  afflicted  with  redhibitory  defects 
l\x  ninths  °f  disposition,  a  drunkard,  run-away,  and  thief.  Prescription  and 
from  the  a  general  denial  are  plead  by  the  defendant.  The  district  court 
cohering18  gave  judgment  against  the  plaintiff,  and  he  has  appealed.  The 
the  phitntfff  first  question  to  be  examined,  is  that  which  the  exception,  as  to  the 
mustprove  t^me  of  commencing  the  action,  presents.  The  slave  was  sold  on 
time  he  ob  the  3d,  April,  1819.  This  suit  was  commenced  on  the  14th  Feb- 
knowdieadge  ruary,  1820.  The  plaintiff  replied  to  the  plea  of  prescription 

of  the  red-  j  d  by  tne  defendant  ;  that  he  brought  his  action  within  six 
hibitory  J  c 

vices.          months  from  the  discovery  of  the  vices  and  defects  complained  or 

in  the  petition.  It  has  been  strongly  contested  by  the  parties  in 
this  cause,  on  whom  the  burthen  of  proof  lies,  the  plaintiff  insisting 
that  he  cannot  be  required  to  prove  a  negative,  viz.  that  he  did 
not  know  of  the  existence  of  the  defect  anterior  to  a  particular 
time  ;  while  the  defendant  urges,  that  th'u  plea  of  the  appellant  is 
an  exception  to  the  general  rule,  which  requires  the  action  to  be 
brought  within  six  months  from  the  date  of  the  sale,  and  that  he  who 
relies  on  an  exception  must  establish  it.  Partida,  3  tit.  14.  L.  2.  I 
have  given  to  this  subject  a  great  deal  of  consideration,  and  my  opin 
ion  is  with  the  defendant.  By  our  Civil  Code,  358.  art.  75.  it  is  suffi 
cient  for  the  seller  of  a  slave  afflicted  with  redhibitory  defects,  to 
oppose  the  action,  that  it  has  not  been  commenced  within  six 
months  from  the  sale.  And  on  showing  this  fact,  the  plaintiff  will 
be  barred,  unless  he  does  away  the  objection,  by  replying  that  he 
did  not  discover  the  vices  or  defects  six  months  before  instituting 
suit.  As  he  makes  the  averment,  1  think  it  his  duty  to  prove  it. 
Certainly,  I  do  not  wish  to  say  that  the  buyer  must  give  evidence 
that  he  did  not  know  of  the  defect  before  a  certain  time,  because 
that  would  be  requiring  him  to  prove  a  negative,  which  is  impossi 
ble.  But  I  think  he  should  establish,  when  the  facts  came  to  his 
knowledge,  on  which  he  relies  to  show  his  right  of  setting  aside 
the  sale.  And  this  he  can  do  without  difficulty  ;  for  the  witnesses 
who  prove  the  vices  on  the  trial,  can  easily  state  when  they  com 
municated  them  to  the  plaintiff'.  If  he  has  received  the  knowledge 


OF  WARRANTY.  Ill 

of  what  the  witnesses  knew,  and  would  swear  through  other 
sources,  he  could  bring  forward  those  who  gave  him  this  informa 
tion.  The  moment  he  does  this,  he  brings  himself  within  the  ex 
ception  ;  and  if  the  vendor  still  insists  the  purchaser  knew  of  the 
vice  at  an  earlier  period,  the  burthen  of  proof  is  then  thrown  on 
him  ;  for  the  buyer  can  do  nothing  more  than  show  affirmatively, 
that  at  a  certain  epoch  he  became  acquainted  with  the  fact ;  he 
cannot  prove  a  negative,  that  he  did  not  know  it  sooner.  The  pas 
sage  cited  by  the  plaintiff  from  the  Curia  Phillipica,  Redhibitoria, 
n.  26.  is  certainly  very  strong;  but  I  cannot,  alone  on  that  authority, 
bring  my  mind  to  assent  to  the  proposition,  that  it  is  the  duty  of 
the  defendant  to  support  by  proof,  what  it  behoves  the  plaintiff  to 
allege. 

If,  in  this  case,  the  plaintiff  had  proved  any  circumstance,  with 
in  six  months,  respecting  the  theft,  1  should  have  held  it  sufficient 
to  have  thrown  the  burthen  of  proof  on  the  defendant,  as  to  his 
knowing  it  sooner.  But  on  this  point  the  testimony  is  entirely  de 
fective.  The  slave  was  bought  in  April.  There  is  evidence  when 
the  master  returned  to  the  Atakapas,  but  none  as  to  the  time  the 
slave  was  sent  there  ;  of  course,  we  have  no  means  of  ascertaining 
when  he  committed  the  theft,  proved  by  one  of  the  witnesses.  All 
we  know  is,  that  it  was  after  he  reached  his  master's  plantation. 
In  regard  to  the  defect  of  the  qualities  of  carpenter  and  joiner,  the 
plaintiff  has  proved  enough  to  show  that  this  action  was  commen 
ced  within  the  time  required  by  law.  But  on  the  merits,  the  evi 
dence  is  so  contradictory,  that  I  do  not  feel  myself  authorised  to 
come  to  a  different  conclusion  in  regard  to  it  from  the  district 
judge.  The  judgment  of  the  district  court  should  be  reversed,  and, 
in  my  opinion,  the  justice  of  the  case  requires  that  there  should  be 
judgment  for  the  defendant,  as  in  case  of  a  nonsuit,  and  that  the 
plaintiff  pay  costs  in  both  courts. 

Martin,  J.  I  cannot  yield  to  the  opinion  of  the  author  of  the  Curia 
Pkillippica.  The  authorities  which  he  cites  do  not  support  his  conclu 
sion.  The  defendant  pleaded  prescription,  and  the  question  is,  who 
is  to  administer  the  proof  of  the  period  at  which  the  knowledge  of  the 
redhibitory  defects  reached  the  vendee  ?  I  think  we  ought  to  re 
quire  from  the  party  who  can  give  it.  If  he  allege  that  he  had  it 
not  at  the  time  of  sale,  as  it  is  clear  that  he  had  it  at  the  time  of 
the  inception  of  the  suit,  it  cannot  be  difficult  for  him,  at  least,  to 
state  at  what  intermediate  period,  and  by  what  means  the  know- 
ledge  came  to  him.  If  he  establishes  any  particular  period — Stabit 


112  SLAVERY. 

presumptio  donee  contrarium  probetur.  If  the  adverse  party  does  not 
show  knowledge  at  an  earlier  period,  the  prescription  will  be 
supported.  This  repels  the  plaintiff's  claim  on  the  score  of  the 
slave  being  a  thief;  as  to  the  other  grounds,  I  think  the  evidence 
is  too  weak. 

Mathews,  J.     I  am  of  the  same  opinion.     Judgment  reversed. 

4. 
REYNAUD  &  SUCKO  v.  GUILLOTTE  &  BOISFOXTAINE.   May  T. 

1823.      13   Martin's   Rep.   227. 

Prescrip-          PoT/er,  J.     The  petition  sets   forth  on  the  24th  Feb.  1821,  the 
hibUor/ac-  defendant  sold  to  the  plaintiff  a   negro   boy  named  Tommy,  about 

from  rtheS  23»  ?ears  old>  for  the  sum  of  #900»  and  warranted  him  free 
timethede-  from  all  redhibitory  vices  and  diseases.  That  at  the  time  of  the 
slave  are  sale  the  slave  was  afflicted  with  ulcers  on  his  leg,  and  that  the  de- 
^  fendants  knew  it,  but  made  false  representations  respecting  his 
health  ;  that  the  said  ulcers  are  of  an  old  standing,  and  that  not 
withstanding  all  the  care,  trouble,  and  expense  which  the  petition 
ers  have  been  put  to,  the  slave  is  almost  entirely  unfit  for  the  work 
and  labor  for  which  he  was  destined  :  and  finally,  that  the  use  of 
said  slave  is  rendered  so  inconvenient  for  them,  that  had  they  been 
informed  of  his  true  situation,  they  would  not  have  bought  him. 
The  answer  avers,  that  the  negro  at  the  time  of  the  sale  was  not 
afflicted  with  ulcers ;  that  if  he  was,  the  sale  cannot  be  rescinded  ; 
and  that  owing  to  the  want  of  care  in  the  plaintiffs,  the  slave  has 
been  injured  in  value  to  the  amount  of  $500.  With  leave  of  the 
court,  the  plea  of  prescription  was  afterwards  added. 

The  first  question  to  be  decided,  is  the  plea  of  prescription.  The 
action  was  commenced  nine  months  and  twenty-four  days  after 
the  date  of  the  sale.  It  is  the  duty  of  the  buyer,  who  brings  this 
action  after  six  months  have  elapsed,  to  prove  when  the  knowledge 
of  the  defects  of  the  slave  was  acquired  by  him.  A  question  arises 
out  of  the  evidence  in  this  case,  whether  the  prescription  runs  from 
the  time  the  disease  was  known  to  exist,  or  from  the  time  it  was 
ascertained  to  be  such  as  would  form  the  ground  of  redhibition. 
We  think  from  the  latter  ;  for  until  the  purchaser  was  instructed 
that,  he  had  a  right  of  action,  he  was  not  in  delay  by  not  bring 
ing  it.  He  cannot  be  accused  of  negligence  while  the  nature  of  the 
disease  was  unknown  to  him,  and  he  was  conferring  a  benefit  on 
the  vendor  by  attempting  to  cure  it.  In  the  case  of  Theard  v. 
Chretien,  we  said,  that  if  the  plaintiff  had  proved  any  circumstance 
respecting  the  time  when  he  acquired  a  knowledge  of  the  vice,  we 


OF  WARRANTY.  113 

should  have  held  it  sufficient  to  throw  the  burthen  of  proof  on  the 
seller,  to  show  that  he  knew  it  earlier.  In  that  now  before  us,  it 
is  proved  by  one  of  the  witnesses,  that  the  plaintiff  did  not  seem 
aware  that  the  disease  was  incurable  in  the  month  of  October  ;  and 
up  to  the  31st  July,  the  negro  was  not  prevented  by  sickness  from 
working.  So  that  whether  we  take  as  the  basis  of  this  action  the 
slave  being  afflicted  with  an  incurable  disease,  or  having  one,  which 
though  not  incurable,  was  known  to  the  vendor  at  the  time  of  the  sale, 
and  rendered  his  services  so  difficult  and  interrupted,  that  if  the 
purchaser  had  been  aware  of  its  existence,  he  would  not  have  made 
the  acquisition.  The  plea  of  prescription  must  be  rejected. 

5. 

MOORE'S  ASSIGNEE  v.  KING  et  al.     Aug.  T.  1822.      12  Mar 
tin's  Louisiana  Rep.  261. 

Per  Cur.     Martin,   J.     The  plaintiff  sues   on  an  obligation  of  The  ven- 
the  defendants,  assigned  him  by  King.     The  principal  in  the  obli-  noranctTof 
gation  pleaded  it  was  not  a  negotiable  one  ;  denied  having  had  no-  a  defect  in 
tice  of  the  assignment,  and  averred  he  had  an  equitable  defence,  does  not 
Hs  prayed,  that  the  assignor  might  be  made  a  party  to  the   suit,    fn  the  ac- 
and  compelled   to  answer,  on   oath,  whether  the   sum   mentioned  tl°.n  (luantt 
in  the  obligation,  was  not  the  price  of  a  negro  woman  sold  by  the 
assignor  to   him  ?     Whether  ths  woman  had  not  before,  and  at 
th?-  time  of  tha  sale,  a  p3ndulous  wen,  on  the  inside  of  one  of  her 
thigh?,  which,  at  tim33,  prevented    h3r  rendering   any   service  at 
all  ;   and  whether  this  circumstance  was  disclosed  at  the  time  of 
the   sale  1     The   assignor   admitted,  that   she  received  the  defen 
dant's  obligation  as  the   price  of  a  negro  woman  sold  him,  and  as 
signed  it  to  the  plaintiff;  that  the  woman  had,  at  the  time  of  the 
sale,  a  mark  on  the  inside  of  one  of  her  thighs,  which  did  not  in 
jure    her,   nor   prevent    her  services    at    any  time  while  she  was 
owned  by  her  ;   hence  this   circumstance  was  not  disclosed  to  the 
vendee,  that  she  did  not  know  of  any  pendulous  wen,  as  stated  in 
the  answer;  but  only  of  the  aforesaid. mark,  which,  however,  she 
never  examined. 

Tha  jury  found,  that  the  sum  mentioned  in  the  obligation  was 
the  price  of  the  negro  woman  named  in  the  answer,  who  had  a 
pendulous  wen,  as  there  stated,  which  rendered  her,  at  times,  in 
capable  of  labor  ;  a  circumstance  which  was  not  disclosed  at,  or 
previous  to  the  sale,  and  that  consequently,  the  plaintiff  ought  to 
suffer  a  diminution  of  $150  from  the  price.  The  plaintiff  had 
15 


114  SLAVERY. 

judgment  accordingly,  and  appealed.  Dr.  Elmor  deposed,  that 
about  eighteen  months  after  the  sale  he  examined  the  woman,  and 
found  she  had  a  pendulous  wen,  of  the  size  of  a  duck's  egg,  at 
tached  by  a  short  neck  to  the  inside  of  her  thigh,  near  the  left 
labia  pudenda.  It  was  said,  she  was  laid  up  in  consequence  of 
an  injury  the  wen  had  received  while  she  was  crossing  a  fence.  It 
was  wounded  and  ulcerated  ;  she  was  relieved.  He  thinks  the 
wen  must  have  been  of  ancient  origin,  as  wens  do  not  reach  the 
size  of  this  in  less  than  one  or  two  years.  The  woman  must  have 
had  it  from  her  infancy.  From  its  appearance,  when  the  witness 
saw  it,  it  must  have  laid  up  the  woman  from  eight  to  ten  days,  and 
the  expense  of  her  cure  could  not  exceed  ten  dollars.  It  must 
ever  be  subject  to  injury,  and  must  incommode  her  in  walking. 
The  witness  thinks  it  ought  to  be  amputated,  which  would  not  be 
attended  with  danger,  would  confine  her  for  fifteen  or  twenty  days, 
and  would  cost  about  thirty  dollars.  Were  not  the  witness  a  sur 
geon,  he  would  not  have  given  half  of  the  price  for  her,  on  account 
of  the  wen  ;  and  as  a  surgeon,  he  thinks  he  would  estimate  the 
diminution  in  the  price,  occasioned  by  it,  at  $100.  Dr.  Dixon 
having  heard  Dr.  Elmor  give  his  evidence,  deposed,  his  opinion 
was  perfectly  the  same,  except  that,  as  an  individual,  he  would 
think  the  diminution  of  the  value  of  the  slave,  occasioned  by  the 
existence  of  the  wen,  at  two  hundred  dollars. 

Marshall,  the  defendant's  overseer,  deposed,  that  the  slave  was 
smart  and  active.  She  was  sick  once  or  twice  with  the  fever. 
He  never  discovered  that  she  limped.  The  plaintiff's  counsel  con 
tends,  that  as  it  is  not  proved  that  the  vendor  had  any  knowledge 
of  the  existence  of  the  wen,  no  diminution  of  the  price  ought  to 
have  to  have  been  made.  Civil  Code  360.  art.  80.  The  igno 
rance  of  the  vendor  protects  him,  indeed,  against  redhibitory  ac 
tion  ;  but  it  is  that  action  alone  of  which  the  code  speaks, 
in  the  part  quoted.  This  ignorance  will  not  avail  in  the  action 
quanti  minoris.  "  If  the  seller  was  ignorant  of  the  defect,  then  the 
buyer  must  keep  the  slave,  and  the  seller  restore  so  much  of  the 
price  as  the  value  is  diminished  by  reason  of  the  defect ;"  and  so, 
we  say,  if  the  slave  was  afflicted  with  any  hidden  disease.  Part  5, 
3.  64.  Judgment  affirmed. 


OF  WARRANTY.  115 

6. 

ST.   REMES  v.  PORE.   May  T.   1821.     10   Martin's   Louisiana 

Rep.  30. 

JMarlin,  J.     This  is  an  action  for  the  recision  of  the  sale  of  a  if  the  dis- 
negro  woman,  on  the  ground  that  she  was  attacked  with  the  ma- 


lady  of  which  she  died  soon  after  the  sale,  previous,  and  at  the  time  its  origin, 
of  the  contract.  The  defence  is,  that  the  defendant,  finding  that  ble  at  "the 
the  woman  was  sick,  had  her  sold  at  auction,  on  the  2d  of  May,  *™ee  °t^he 

when  she  was  struck  to  the  plaintiff.  That  soon  after  the  plaintiff  case  is  a 
.  redhidilory 

informed  him  he  would  not  take  the  woman,  as  she  was  sick  ;   to  one. 

which  the  defendant  replied,  he  thought  he  was  bound  to  take  her, 
as  she  had,  according  to  the  defendant's  orders,  been  sold,  with  the 
only  warranty  of  the  redhibitory  diseases  ;  that  on  the  9th  the 
plaintiff  informed  him  he  would  accept  the  sale,  and  the  defendant 
executed  the  bill  of  sale  for  her  to  the  plaintiff  before  a  notary 
public.  There  was  judgment  for  the  plaintiff,  and  the  defendant 
appealed.  The  defendant,  by  interrogatories,  drew  the  following 
facts  from  the  plaintiff  :  The  plaintiff  after  the  auction,  and  before 
the  execution  of  the  sale  before  the  notary,  told  the  defendant  he 
would  not  take  the  wench,  as  he  had  discovered  that  she  was  sick. 
To  which  the  defendant  replied,  he  did  not  know  whether  she  was  ; 
but  that,  at  all  events,  he  meant  to  sell,  and  had  actually  sold  her 
as  he  had  bought  her,  i.  e.  with  a  warranty  of  all  redhibitory  dis 
eases.  To  the  best  of  the  plaintiff's  recollection,  of  the  correct 
ness  of  which  he  declared  himself  sure,  the  defendant  did  not  say, 
that  unless  the  plaintiff  could  prove  that  the  woman's  disease  was  a 
redhibitory  one,  he  could  not  help  taking  her,  as  those  only  were 
warranted  against.  Some  days  after,  and  in  consequence  of  the 
defendant's  declarations,  the  parties  met  at  the  notary's  office,  and 
executed  the  act  of  sale.  The  statement  of  facts  shows,  that  Dr. 
Dow  deposed,  that  he  was  called  upon  to  see  the  woman,  just  after 
the  defendant  bought  her,  and  recognized  her  as  a  patient  whom 
he  had  visited  at  her  former  mistress's  seven  months  before  ;  at 
that  time  she  labored  under  an  intermittent  fever,  occasioned  by  a 
suppression  of  the  menstrual  discharge  ;  he  ordered  the  ordinary 
remedies  :  wine,  bark,  and  a  generous  diet,  with  exercise.  When 
he  saw  her  at  the  defendant's  he  found  her  weak,  her  legs  swollen, 
and  told  him  a  generous  diet  and  proper  medicines  would  effect 
her  cure.  And  as  he  did  not  consider  her  as  incurable,  and  as 
as  she  was  a  valuable  servant,  he  advised  him  to  have  her  well 
attended.  He  has  not  seen  her  since.  Dr.  Dupuy  said  he  was 


116  SLAVERY. 

called  upon  by  the  plaintiff,  to  the  woman  ;  she  appeared  very 
sick,  and  he  supposed  her  incurable.  He  attended  her  from  the 
17th  of  May,  1818,  rill  the  13th  June,  when  she  died.  On  the 
second  day  of  his  attendance,  she  was  in  a  state  of  complete 
marasme,  with  all  the  symptoms  of  a  chronic  disease,  in  its  last 
stage  ;  her  legs  swollen.  He  attended  her  carefully,  but,  as  he 
had  supposed,  to  no  purpose.  The  disease  he  believes  was  of 
seven  or  eight  months'  standing,  and  quite  incurable  when  he  saw 
her.  Giguel,  the  plaintiff's  brother-in-law,  deposed,  he  knew  the 
woman,  who  had  before  been  his  property.  The  defendant  applied 
to  him  before  he  bought  her,  and  he  told  him  i-hr1  was  a  good  ser 
vant.  He  did  not  know  her  to  be  sick  before  she  died  at  his 
house  on  the  13th  of  June  ;  the  plaintiff  having  put  her  there. 

It  is  contended,  that  the  plaintiff  cannot  recover,  as  the  sickness 
of  the  slave  was  known  to  him  at  the  time  of  the  execution  of  the 
act  of  sale.  It  is  not  easy  to  conclude,  from  the  evidence  in  the 
case,  that  he  knew  the  disease  was  an  incurable  one  ;  and  he  had  the 
plaintiff's  assurance,  that  if  it  was  a  redhibitory  one,  it  was  warrant 
ed  against;  so  that  our  sole  inquiry  is,  was  the  disease  a  redhibi 
tory  one  1  Ailments  o^  infirmities  constitute  redhibitory  defects, 
when  they  are  incurable  by  their  nature.  So  that  the  slave  subject 
thereto,  is  absolutely  unfit  for  the  services  for  which  he  is  destined  ; 
or  these  services  are  so  inconvenient,  difficult,  and  interrupted, 
that  it  is  to  be  presumed  the  buyer  would  not  have  bought  her  at 
all,  if  he  had  been  acquainted  with  the  defect ;  or  that  he  would 
not  have  given  so  high  a  price,  had  he  known  that  such  a  slave 
was  subject  to  that  sickness,  or  infirmity.  Civ.  Code.  358.  art.  80. 
I  understand  this  to  mean,  if  the  buyer  knows  the  nature  of  the 
disease,  i.  e.  that  it  is  incurable.  In  the  present  case,  the  disease 
existed  before  the  sale,  and  though  curable  in  its  origin,  had  now 
become  incurable.  This  certainly  was  not  known  to  the  plaintiff; 
for  who  can  believe,  that  if  it  was,  he  would  have  bought  1  He 
knew  the  slave  to  be  sick,  informed  the  vendor  of  it,  and  received 
for  answer,  that  she  was  sold  with  a  warranty  of  redhibitory  dis 
eases  ;  among  these,  the  law  has  classed  incurable  ones,  such  as  that 
under  which  the  slave  labored.  It  appears  to  me,  the  parties 
contemplated  that  the  vendee's  claim  would  depend  on  the  issue 
of  the  disease.  I  think  we  ought  to  affirm  the  judgment  of  the 
parish  court. 

Mathews,  J.  I  concur  in  this  opinion,  for  the  reasons  therein 
expressed.  Judgment  affirmed. 


OF  WARRANTY.  117 

7. 
HEPP  v.  PARKER.    Jan.    T.  1830.     20  Martin's  Rep.  473. 

Per  Cur.     Porter,  J.     This  is  a  redhibitory  action,  in  which  Know- 
there  \va^  judgment   in  the  court  of  the  first  instance  in  favor  of  p^^a™ra 
the  plaintiff.     The  defendant  appealed.     The  cause  was  submit-  that  a  slave 

is  di^Ccispcl 

ted  to  a  jury,  and  on  the  trial,  the  appellant  took  two  bills  of  ex-  will  not  de 
ceptions.     One  of  them  was  to  the  opinion  of  the  court  prevent-  tfoi 


ing  a  witness  answering  the  following  question:   "How  many  days 

before  the  plaintilf  signed  the  bill  of  sale  was  it  that  he  came  and  shown  he 

perused  the  bill  of  sale,  as  written  in  the  records  of  G.  R.  Stringer,  disease  was 

Esq.,  notary  public  ?"     We  think  the  judsre  erred.     The  answer  incurable, 

-    '  or,     that 

to  the  question  could  not,  in  any  respect,  contradict  the  act,  not  without 
even  its  date  ;  for  ncn  constat,  whether  the  date  was  affixed  when  that,  he 
the  instrument  was  drawn  out,  or  at  the  time  it  became  a  public  ^"^  th0ef 
act  by  the  signatures  of  the  parties.  the  slave's 

The  object,  declared  in  the  bill  of  exceptions  of  putting  this 
question,  was  to  show  that  the  plaintiff  had  the  slave  in  possession, 
and  was  acquainted  with  him  before  he  signed  the  bill  of  sale. 
The  appellee  urges,  that  if  this  were  the  object,  it  could  not  have, 
in  any  respect,  weakened  his  case,  or  strengthened  his  adversary's, 
supposing  the  witness  to  have  answered  as  the  party  calling  ex 
pected.  Because,  whether  the  plaintiff  knew  of  the  fact  or  not, 
at  the  time  of  the  purchase,  he  is  still  protected  under  the  warranty. 
To  this  objection  it  has  been  answered,  that  the  disease  of  which 
the  slave  died,  was  one  of  those  which  the  law  classes  as  an  absolute 
vice  of  body  ;  that  consequently,  the  action  can  only  be  maintained 
under  the  2496th  article  of  the  code,  which  confers  it  on  the 
buyer,  when  the  thing  bought  is  either  absolutely  useless,  or  its 
use  is  so  inconvenient  and  imperfect,  that  it  must  be  supposed  the 
buyer  would  not  have  purchased  it,  had  he  known  of  the  vice  ;  and 
that  if  the  answer  to  the  interrogatory  would  have  induced  the  be 
lief  of  the  purchaser  having  a  knowledge  of  the  disease  at  the  time 
he  bought,  then  it  was  material  it  should  be  answered,  because  the 
presumption  of  ignorance,  on  which  the  law  gives  an  action,  would 
be  destroyed.  This  argument  has  also  been  supported,  by  refer 
ence  to  the  2497th  article  of  the  code,  which  declares,  that  appa 
rent  objects,  such  as  the  buyer  might  have  discerned  by  simple  in 
spection,  are  not  among  the  number  of  redhibitory  vices.  Know 
ledge  that  a  slave  was  diseased  at  the  time  of  the  sale,  and  a  know 
ledge  that  he  was  afflicted  with  an  incurable  disease,  are  two  distinct 
things,  and  their  effects  on  the  right  of  the  parties  quite  dissimilar. 


118  SLAVERY. 

It  is  almost  incredible,  that  any  person  in  his  senses  would  buy 
property  of  this  kind,  and  giVe  a  full  price  for  it,  unless  he  con 
ceived  he  was  protected  by  the  warranty,  and  even  then  it  is  diffi 
cult  to  conceive  any  object  in  such  a  contract.  If,  indeed,  as  was 
said  in  the  case  of  St.  Homes  and  Pore,  it  appeared  clearly,  that 
the  purchaser  knew  the  nature  and  extent  of  the  disease,  and  con 
sented  to  purchase  under  all  risks,  the  action  of  redhibition  could 
not,  perhaps,  be  maintained.  But  when  the  evidence  is  in  the 
least  degree  equivocal,  the  presumption  would  be,  that  where  a 
full  price  was  given,  the  purchaser  conceived  the  disease  was  other 
than  incurable  ;  one  that  would  yield  to  medicine.  It  is  established 
in  the  present  instance,  that  the  slave  died  of  an  abscess  in  his 
lungs.  When  the  physician  was  first  called  in,  which  was  seven 
or  eight  days  after  the  date  of  the  bill  of  sale,  the  negro  was  found 
to  be  afflicted  with  a  cough,  and  difficulty  of  breathing.  This 
cough  existed  at  the  time  the  contract  was  made,  for  it  is  in  evi 
dence  that  the  defendant,  when  questioned  in  relation  to  it  by  the 
plaintiff,  said,  it  was  the  remains  of  dysentery.  Now,  supposing 
the  witness  had  established  the  fact  of  the  plaintiff's  having  the 
slave  in  his  possession  some  time  before  he  signed  the  note,  we  do 
not  see  how  it  could  have  aided  his  defence.  The  presumption 
flowing  from  it  would  only  have  confirmed  a  fact  proved  by 
other  testimony,  and  in  relation  to  which  there  does  not  appear  to 
have  been  any  dispute ;  namely,  that  the  plaintiff  knew  at  the  time 
he  purchased  the  slave  he  was  afflicted  with  a  cough.  We  are 
clear  this  knowledge  did  not  defeat  his  recourse  in  warranty,  for 
there  must  not  only  be  knowledge  of  a  disease,  but  knowledge  of 
one  that  is  incurable,  and  of  such  a  nature  as  to  render  the  slave 
useless,  or  his  use  so  inconvenient  and  imperfect,  that  the  buyer 
bought  under  the  hope  or  chance  he  might  recover.  10  Martin's 
Rep.  220.  Although,  therefore,  the  judge  might  very  properly 
have  admitted  the  evidence,  we  do  not  see  any  possible  iufluence 
it  could  have  had  in  the  cause  which  would  authorize  us  to  remand 
it  for  a  new  trial.  Judgment  affirmed. 

8. 
BROWNSTON  v.  CROPPER.  Spring  T.  1822.  1  Little's  Rep.  173. 

The    same 

adopted6 in       Brownston  filed  a  bill  against  Cropper,  alleging  he  purchased   a 

Kentucky.    negro  of  him,  and  she  died  in  16  days  after  ;  that  she  had  been  sick 

of  an  inveterate  and  chronic  disease  from  the  hour  of  her  sale,  and 

that  he  had  discovered  she  was  laboring  under  the  same  disease  long 


OF  WARRANTY.  119 

before  the  sale,  to  the  knowledge  of  Cropper,  who  represented  her 
to  be  sound  and  healthy,  which  induced  him  to  purchase  her.  It 
appeared  that  the  slave  told  Brownston  at  the  time  of  the  sale,  that 
she  was  mortally  sick,  and  could  be  of  no  service  to  him.  The 
court  held,  that  where  the  seller  of  a  slave,  represented  her  to  be 
in  good  health,  notwithstanding  the  slave  should  state  her  true 
situation,  it  would  not  be  notice  to  him  so  as  to  discharge  the  seller 
from  his  responsibility  for  the  misrepresentation,  there  being  a 
strong  indisposition  in  slaves  to  be  sold,  and  they  by  stratagem  to 
avoid  a  sale,  may  frequently  feign  sickness,  and  the  purchaser  may 
well  disbelieve  them,  and  rely  on  the  word  of  the  seller.  The 
constitutional  court  of  South  Carolina  decided  directly  the  reverse. 
They  held  that  in  an  action  for  a  breach  of  warranty  of  soundness, 
the  declarations  of  the  slave  in  relation  to  the  disease  were 
admissible.  1  Harper's  Rep.  39. 

9. 
SMITH  v.  ROWZEE.    Spring  T.  1821.    3  Marshall's  Rep.  527. 

Rowzee  sold  a  negro  girl  to  Smith.    The  contract  was  made  at  But  if  on 
Smith's  house,  he  never  having  seen  the  girl.     The  next  evening  &e  sale  of 
the  girl  was  sent  to  Smith's  house,  from  which  place  she  was  im-  state    of 
mediately  taken  by  Bishop,  who  had  purchased  her  of  Smith,  to  concealed 
his  own  house,  about  eight  miles  distant.     He  was  obliged  to  stop  ^J^ed 
with  her  several  times  on  the  road,  and  finally  -was  compelled  to  thepurcha- 
leave  her  at  a  neighboring  house.     She  was  immediately  taken  solved 
back  to  Smith's  house,  and  the  contract  between  Smith  and  Bishop 
rescinded.     The  girl  remained  at  Smith's  house,  under  the  care 
of  physicians,  when  she  died.     And  Rowzee  sued  Bishop  for  the 
price  agreed  upon  at  the  time  of  the  sale.    Verdict  for  the  plaintiff. 
The  defendant  appealed. 

Per  Cur.  Mills,  J.  The  plaintiff  was  no  doubt  acquainted 
with  the  debilitated  state  of  the  slave  when  he  sold  her.  She  had 
just  recovered  from  a  fit  of  sickness,  and  the  plaintiff  sent  her  to 
the  house  of  the  defendant  veiled,  to  conceal  the  loss  of  part  of  her 
hair  by  fever.  He  said  nothing  about  her  sick  or  dangerous  state. 
If  he  concealed  these  things,  he  was  guilty  of  concealing  the  truth, 
which  absolved  the  appellant  from  all  obligations  to  pay  for  her,  or 


120  SLAVERY. 

if  he  gave  a  coloring  to  the  facts  relative  to  her  condition,  he  was 
guilty  of  a  misrepresentation.*     Judgment  reversed. 

10. 
EXECUTORS  OF   HART  v.  EDWARDS.   May  T.  1831.     2  Bailey's 

Rep.  306. 

And  there  Assumpsit  on  a  promissory  note,  given  for  a  slave, 
plied  war-  At.  the  sale,  the  slave  looked  very  ill,  and  the  auctioneer  gave 
tbe^/ce"1  not'lce'  tnat  "  he  had  had  the  venerial,  but  was  well,  or  nearly 
where  the  well."  The  defendant  gave  $460.  ;  and  if  he  had  been  entirely 
we^>  would  have  been  worth  $30  or  $40  rn^re.  The  slave  died 
seven  da3's  aftcr  the  sale-  Verdict  for  plaintiff.  Motion  for  a 
new  trial,  on  the  ground  that  there  was  an  implied  warranty  arising 
from  the  price. 

Per  Cur.  Johnson,  J.  The  defendant  had  notice,  at  the  time  he 
purchased  the  slave,  that  he  was  diseased  ;  and  the  evidence  shows, 
satisfactorily,  that  his  death  was  the  consequence  of  that  disease, 
or  its  incidents.  And  if  he  thought  proper  to  purchase,  without  a 
warranty  against  its  consequences,  he  was  bound  by  it.  Motion 
denied. 


*  An  express  warranty  excludes  a  prior  one.  Lamier  v.  Auld,  1  Murphy's  Rep. 
138.  And  no  particular  form  of  expression  is  required  to  make  an  express  warran 
ty.  Osgood  v.  Lewis, "2  Har.  &  Gill's  Rep.  495. ;  Bacon  v.  Brown,  3  Bibb's  Rep  35. 
And  the  jury  are  the  proper  judges  whether  the  words  amount  to  an  express  war 
ranty  or  not.  Ibid.  Dufiee  v.  Mason,  8  Cowen's  Rep.  25.  Borrekens  v.  Bevans, 
3  Rawle's  Rep.  32.  Jackson  v.  Wetherell,  7  Serg.  &  Rawle's  Re_p.  480.  There 
can  be  then  no  definite  rule  laid  down  as  to  what  shall  constitute  an  express  warranty. 
As  where  the  seller  said,  on  the  sale  of  a  mare,  she  was  safe,  gentle,  and  kind,  in  har 
ness,  the  court  held  it  a  representation,  and  not  a  waranty.  Jackson  v.  Wetherell,  7 
Serg.  &,  Rawle's  Rep.  480. ;  but  where  the  seller  said  of  a  negro  woman  slave,  that 
"she  was  of  sound  wind  and  limb,  and  free  from  all  disease,"  the  court  held,  that  it 
was  a  warranty  of  the  soundness  of  the  slave.  Cramer  v.  Bradshaw,  10  Johns  Rep. 
484.  And  where  the  seller  of  a  colt  said,  "  mere  is  nothing  the  matter  with  the  colt; 
it  is  well  and  sound,  and  will  make  a  fine  horse,"  the  court  said  it  might  amount  to 
a  warranty,  or  it  might  be  matter  of  opinion ;  and  the  jury  must  judge  from  all  the 
circumstances  of  the  case,  and  how  the  words  were  understood  by  the  parties.  Duf- 
fee  v.  Mason,  8  Cowen's  Rep  25. ;  Osgood  et  al.  v.  Lewis.  2  Har  &  Gill's  Rep.  495. ; 
Borrekens  v.  Bevans  et  al  ,  3  Rawle's  Rep  23.  And  the  rule  seems  to  be,  that  in  an 
express  warranty  of  a  chattel,  it  is  immaterial  whether  the  party  making  it  knew  it  to 
to  be  false  or  not.  Watts  v.  Mattingly,  1  Bibb's  Rep.  244. 


OF  WARRANTY.  121 

11. 
DAVIS  v.  SANDFORD.     Spring  T.  1815.     6  Little's  Rep.  206. 

The  appellant  sold  to  the  appellee  a  slave.  The  deed  of  bar-  Or  evenof 
gain  and  sale  contained  a  warranty  that  the  negro  was  born  a  slave.  il^e  where 
It  appeared  the  negro  had  been  in  the  state  of  Ohio,  and  had,  ser  knows 
by  the  courts  of  that  state,  been  declared  free,  which  fact  was  acts^ 
known  to  both  parties.  The  seller  alleging,  that  judgment  de-  ker< 
claring  the  slave  free,  had  no  force  or  effect  upon  his  rights,  as  he 
was  not  made  a  party. 

The  court,  Ch.  J.  Boyle,  held,  that  the  warranty  was  not  broken; 
it  not  being  alleged  or  proved,  that  the  negro  was  not  born  a  slave; 
and  the  justice  of  the  case  is  with  the  seller,  the  buyer  purchasing 
with  a  knowledge  of  all  the  facts,  which  was  properly  shown  bj 
parol  evidence. 

12. 

OTTO'S  SYNDICS   v.  DAVID.  January  T.    1836.      9   Louisiana 

Rep.  59. 

This  was  an  action  to  recover  the  price  of  a  slave  sold.  A   malady 
This  sale  took  place  in  the  afternoon  of  the  22d  January,  1834, 
and  was  of  a  woman  called  Madeleine,  for  $960,  adjudicated  to 

the  plaintiff  as  the  property  of  the   insolvent.     It  appeared  that  thorize  the 

Madeleine  fell  sick  of  the  cholera,  on  the  24th  of  January,  the  day  action*  and 
after  she  was  delivered  to  the  defendant,  and  regular  medical  aid 


was  administered  ;   but  she  died  on  the  25th  of  the  same  month.       ^hen   it 

baffles    the 

The  district  judge  decided,  that  a  recision  of  the  sale  must  take  efforts    of 
place  ;  the  presumption  being,  that  the  disease  existed  at  the  time  ™£  1C^ 
of  the  sale.  dea?th    .e?' 

sues    with- 

On  appeal,  the  court  ordered,  that  the  sale  of  the  slave  Magde-  in  three 
leine  be  rescinded  and  annulled,  observing,  that  it  has  been  con-    &ys' 
tended  in  argument,  that  the  cholera,  the  malady  of  which  this 
slave  died,  is  not  an  incurable  disease  in  its  first  stages.     The  court 
is  of  a  different  opinion  ;  it  considers  the  malady  incurable,  so  far 
as  to  authorise  the  redhibitory  action,  when  it  baffles  the  efforts  of 
regular  medical  aid,  and  death  ensues,  notwithstanding  this  aid  is 
promptly  administered.     In  this  respect  the  judgment  in  the  first 
instance,  is  correct,  and  the  redhibitory  action  is  sustained. 

16 


loo  SLAVERY. 

13. 

HAWKINS  v.  BROWN  et  al.     Oct.  T.  1834.  7    Louisiana  Rep. 
417.     6  Martin's  Rep.  539.  N.    S. 

Parol   evi-       The  action  was  brought  on  two  promissory  notes.     The  notes 


d-  were  given  ag  part  oi-  the  price  Of  two  negroes.     The  slaves  be- 
prove          longed  to  Thomas  Gimball's  succession,  and  were  sold  at  auction. 
ittion^o^a  The  crier  stated  that  one  of  them  was  not  sound,  and  from  con- 
rela?k>n  to  versation  with  others,  the  defendants  knew  of  the  redhibitory  vices 
the    redhi-  of  tne  siaves.     The  other  slave  was  a  runaway,  and  great   thief. 
of  davaTat  Verdict  for  plaintitf.     The  defendants  appealed. 
thebslle,e         It  was  contended,  that  testimonial  proof  could  not  be   received 
but  not  the  to  contradict  the  proces  verbal,  or   written   sale   of  the   slaves. 
ofstrangers  There  is  no  mention  made  of  the  redhibitory  defects  being  declared 
by  the  seller  or  auctioneer,  in  the  procvs  verbal  of  this  sale,  which 
must  be  conclusive  on  this  point. 

Per  Cur.  Martin,  J.  The  Louisiana  code,  art.  2498.,  provides 
that  the  vendee  cannot  urge  redhibitory  vices  which  were  made 
known  to  him  by  the  vendor,  at  or  before  the  time  of  sale  ;  and 
authorizes  parol  evidence  of  these  declarations. 

But  we  are  compelled  to  say,  that  no  declarations  made  by  a 
stranger  can  have  the  same  effect.  The  conversation  of  by-standers 
with  either  of  the  defendants  were,  in  the  opinion  of  the  court,  impro 
perly  admitted  to  exclude  the  legal  warranty  relied  on,  and  the 
benefit  of  which  is  claimed  by  the  defendants,  unless  they  tended  to 
establish  the  fact  that  the  redhibitory  vices  complained  of,  had  been 
declared  by  the  vendor  to  the  defendants.  Judgment  reversed. 

14. 
HANKS  v.  M<KEE.      Fall  T.  1822.      2  Little's  Rep.  229. 

The  appellant,  in  his  declaration  averred,  that  the  appellee  sold 
?r  i5"re"g  him  a  slave  for  $400,  and  represented  the  slave  to  be  sound  and 
thT  vnio-lg  healthy,  except  the  phthisic,  and  she  had  it  lightly,  and  it  would 
oTextent  not  do  ^er  ***?  inJulT»  lcnowmo  at  ^ie  same  time  ^s  representa- 
Of  a  disease  tions  were  false,  and  that  she  was  laboring  under  the  last  stage  of 
JaTedvoiihe  the  disease,  and  that  she  died  shortly  after  the  sale. 

It  appeared  the  wench  was  purchased  at  the  house  of  the  appel 
lant.  The  appellee  stated  the  wench  was  19  years  of  age,  mid 
dling  stature,  large  enough  for  any  business,  and  was  healthy,  except 
she  had  the  phthisic,  and  on  these  representations  the  appellant 
was  induced  to  take  the  slave.  He  sent  a  messenger  for  the  slave, 


OF  WARRANTY.  123 

and  the  appellee  not  having  yet  arrived,  the  messenger  returned 
without  her.  Two  days  after,  he  sent  the  messenger,  who  re 
turned  with  the  slave,  who  was  sick  and  unable  to  walk,  and  died 
at  his  house  within  three  weeks  after.  The  court  instructed  the 
jury,  "  that  it  was  the  duty  of  the  plaintiff,  now  appellant,  to  have 
used  due  diligence  in  discovering  any  defect  which  might  belong 
to  the  negro."  Verdict  for  defendant 

Per  Cur.  That  every  person  purchasing  an  article  or  commo 
dity,  which  may  be  defective,  may  be  bound  to  espy  out  any  visi 
ble  defect,  easy  to  be  discovered,  when  the  article  is  examined,  and 
that  the  seller  may  not  be  responsible  for  such  defects,  will  not  be 
contested.  But  even  then,  if  the  seller  uses  any  artifice,  or  dis 
guises  such  defects,  or  misrepresents  them,  or  by  false  statements 
induces  the  purchaser  to  waive  the  defect,  and  make  the  purchase, 
the  defect  notwithstanding,  the  seller  may  be  made  responsible. 
But  the  phthisic  or  asthma  is  not  a  disease  of  that  palpable  cha 
racter,  that  a  person  is  bound  to  notice  it,  certainly  not  the  stage 
the  disease  has  progressed.  If  the  seller  misrepresented  even  the 
violence  of  the  disease,  so  as  to  induce  the  purchaser  to  buy,  he 
is  responsible.  Judgment  reversed. 

15. 
GALBRATH  v.  WHYTE.  April  T.  1797.     Haywood's  Rep.  535. 

Per  Cur.   Caveat  emptor  applies,  where  a  man  purchases  an  ar-  So,  also, 

, .   ,         ~  ,  omitting  to 

article  of  personal  property  not  in  the  vendor's  possession.  He  disclose  de- 
ought,  in  such  case,  to  require  a  warranty  ;  the  not  being  in  pos-  d 
session,  gives  reason  to  doubt.  Another  case  is,  where  the  thing 
sold  has  some  visible  quality  which  lessens  its  value.  Where  it 
has  a  quality  lessening  its  value,  which  is  not  discoverable  by  or 
dinary  inspection,  it  is  otherwise.  In  such  case,  there  is  no  need 
of  any  express  warranty.  Every  man  is  bound  to  be  honest.  He 
ought  to  discover  to  the  vendee,  all  such  properties  as,  if  known, 
might  probably  dispose  him  not  to  purchase.  If  a  nran  sell  an  un 
sound  horse,  whose  disorder  is  not  known,  and  receives  full  value, 
as  for  a  sound  horse,  an  action  lies  against  the  vendor  ;  and  that 
action  may  be  assumpsit,  stating  the  sale,  and  that  the  vendor  un 
dertook  to  prove  the  horse  was  sound.  See  Thompson  v.  Tate, 
1  Murphy's  Rep.  97.  ;  Sheber  v.  Robinson  et  al.,  2  Murphy's  Rep. 
33.  ;  Gilchrist  v.  Morrow,  2  Car.  L.  Rep.  607.  ;  Erwin  v.  Max 
well,  3  Murphy's  Rep.  241.  ;  Ayres  v.  Parks,  3  Hawks'  Rep.  59. 
And  so,  also,  where  a  sale  is  made  by  sample.  Boorman  and 


124  SLAVERY. 

Johnson  v.  Jenkins,  12  Wend.  Rep.  566.  ;  Beebee  v.  Robert,  12 
Wend.  Rep.  413.  ;  Andrews  v.  Kneeland,  6  Cowen's  Rep   354. 

16. 
TEXADA  v.  CAMP.  June  T.  1824.  Walker's  Mississippi  Rep.  150. 

If  A.  sells  Per  Cur.  Ellis,  J.  Trespass  on  the  case,  on  a  warranty  for 
'  the  soundness  of  a  negro  woman  sold  by  Texada  to  Camp.  Plea 

not  &u^tv-  ^nen  tn*s  case  was  heard,  the  plaintiff  produced  a 
inan  action  bill  of  sale  from  defendant  to  plaintiff,  which  warrants  the  title,  as 
gainst  A.  well  as  the  health  of  the  negro  woman  Malind,  for  and  in  consi- 
SLty?  Itfc  deration  of  the  sum  of  $475.  It  was  also  proved,  that  Camp  had 
no  defence  so](j  the  negro  for  $325  to  one  White  ;  but  said  negro,  soon  after 
that  before  the  sale  to  White,  and  before  the  institution  of  this  suit,  died  with 

tne  venereal  disease.     Upon  this  evidence  the  defendant's  counsel 


the  same      moved  the  court  to  instruct  the  jury,  1st.  That  if  they  should  be  of 

slave    to  a  J      J9 

third    per-  opinion,  from  the  evidence,  that  the  plaintiff  ought  to  recover,  that 
that  no  re-  then  the  measure  of  damages  should  be  the  difference  between 


at  the    time    °f  Sale   aild  warrantJ>  and 

gainst  B.  what  would  have  been  her  value  at  that  time,  if  sound.  2d.  That 
if  plaintiff,  had  sold  said  slave,  which  appeared  from  the  evidence, 
he  could  not  recover  from  the  defendant,  unless  a  recovery  had 
been  had  against  him.  But  the  court  overruled  the  motion,  and 
charged  the  jury  expressly,  that  if  they  found  by  the  evidence,  that 
the  slave  in  question  was  worthless,  and  had  at  the  time  of  the  sale 
the  disease  of  which  she  died,  that  the  measure  of  damages  should 
be  the  sum  paid  for  the  negro  by  Camp,  without  saying  any  thing 
about  interest,  leaving  that  matter  entirely  discretionary  with  the 
jury.  To  which  opinion  the  counsel  excepts,  &c. 

The  only  question  raised  by  the  assignment  of  errors,  is  as  to 
the  measure  of  damages.  The  general  rule  upon  this  subject 
cannot  be  mistaken.  In  trover,  it  would  be  the  value  of  the  pro 
perty  at  the  time  of  conversion  ;  but  according  to  better  and  later 
decisions,  the  rule  has  been  extended.  As  for  instance,  in  trover 
for  money  in  a  bag,  the  measure  of  damages  would  be  the  amount 
of  the  sum,  with  interest,  from  the  time  of  conversion.  So,  in  a 
similar  action  for  a  slave,  the  jury  would  be  instructed  to  give 
the  value  of  property  at  the  time  of  conversion,  with  its  yearly 
value  from  the  same  period,  up  to  the  rendition  of  the  judgment  of 
the  court.  See  the  case  of  Thomas  Hinds  v.  William  Terry,  re 
ferred  from  Jefferson  county,  where  these  principles  are  clearly 
established.  14  Johns.  Rep.  122.  In  the  case  before  us,  Texada 


OF  WARRANTY.  125 

sold  a  negro  to  Camp  for  $475,  and  on  the  29th  of  September, 
1821,  warranted  her  to  be  sound  in  body  and  mind.  According 
to  the  finding  of  the  jury,  she  was  worthless,  and  unsound,  on  the 
day  of  warranty,  and  I  think  the  judge  instructed  the  jury  correctly, 
and  might  with  propriety  have  gone  further,  and  charged  them  to 
have  found  a  full  verdict,  with  interest  from  the  day  of  the  date  of 
the  warranty,  as  I  am  fully  persuaded  the  defence  sought  to  be 
maintained  by  the  defendant,  cannot  be  supported  by  the  rules  and 
principles  of  the  law. 

Will  the  vices  and  illegalities  of  a  contract  between  Camp  and 
White,  be  a  matter  of  good  defence  by  Texada  in  the  present  case, 
on  a  seperate  and  distinct  contract  1  I  presume  not.  As  if  A. 
receives  money  to  the  use  of  B.  on  an  illegal  contract  between 
B.  and  C.,  he  shall  not  be  allowed  to  set  up  the  illegality  of  the 
contract,  as  a  defence  in  an  action  brought  against  him  for  the 
money  of  B.  See  the  case  of  Levant  v.  Elliott,  in  1  Bos.  & 
Pull.  So,  in  this  case,  Texada  shall  not  be  allowed  to  set  up  the 
illegal  contract  of  Camp  and  White,  as  a  matter  of  defence  be 
fore  the  court  and  jury,  because  he  has  received  a  full  price  for 
his  negro  upon  the  warranty  ;  and  by  that  alone  he  must  be  an 
swerable,  it  being  the  contract  upon  which  this  action  is  founded. 
I  will  not  deny  but  that  Camp  will  be  liable  to  White,  whenever 
he  may  think  proper  to  establish  his  claim,  but  that  a  party  to  a 
suit  at  law,  can  travel  out  of  the  express  terms  of  his  contract,  by 
which  his  liability  has  been  created,  when  the  jury  have  said  the 
property  warranted  was  not  worth  one  cent,  is  claiming  too  great 
an  indulgence  at  the  hands  of  the  court.  Let  the  judgment  of 
the  court  below  be  affirmed.  Judgment  against  the  principal  and 
security. 

17. 

MILLAR  v.  COFFMAN.  March  T.  1829.  19  Martin's  Louisiana 

Rep.  556.  S.  P.  LAWRENCE  v.  M'FARLANE,  19  Martin's  The  causes 

-D  rr<-)  for  which  a 

Itep.    DD5.  reduction 

in  the  price 

Per  Cwr.     Porter,  J.     The  quesion  which  this  case  presents  is,  ^nabslave 

whether  the   buyer  of  a  slave  afflicted  with  a  disease  which  was  claimed  are 

curable  in  its  nature,  and  cured,  has  an  action  on  reduction  of  the  as'kosTfor 

price.     The  services  of  the  slave  were  lost  to  the  purchaser  for  wh!ch  th(l 

,  .  recision  of 

about  sixty  days.     The  court  below  thought  he  has  not,  and  gave  the  sale 
judgment  for  the  defendant.     The  plaintiff  appealed.     The  judge, 


126  SLAVERY. 

i 

under  the  2522d  article  of  the  Louisiana  Code,  assimilated  the  claim 
for  a  reduction  in  the  price  to  the  action  for  redhihition,  and 
concluded  that,  as  in  the  latter  action,  the  contract  could  not  be  set 
aside,  unless  the  slave  was  afflicted  with  some  vice  or  defect  which 
rendered  him  absolutely  useless,  or  his  use  so  inconvenient  or 
imperfect  that  it  must  be  supposed  the  buyer  would  not  have 
purchased  him  had  he  known  of  his  imperfections  ;  the  plaintiff 
could  not  demand  any  reduction  for  a  defect  which  did  not  fall 
within  either  of  the  causes  that  furnish  ground  for  redhibition. 
We  think  the  judge  did  not  err.  The  article  2522,  in  our  opinion, 
places  the  causes  for  the  reduction  of  price  on  the  same  ground 
as  those  of  redhibition,  and  we  are  unable  to  say,  from  a  considera 
tion  of  the  proof  offered  in  this  instance,  that  had  the  plaintiff  been 
informed  of  the  disease  under  which  the  slave  labored,  he  would 
not  have  purchased  him.  Judgment  affirmed,  with  costs. 

18. 
DESDANES  v.  MILLER.  Jan.  T.   1824.     14  Martin's  Louisiana 

Rep.  53. 

Whenaju-  Per  Cur.  Mathews,  J.  This  suit  is  brought  to  recover  the  value 
ayslave  who  of  a  certain  female  slave,  described  in  the  petition,  on  account  of  a 
has  subse-  re(jnibitory  disease  with  which  she  is  stated  to  have  been  afflicted 
died?  had  a  at?  and  before  the  time  of  sale  and  delivery  to  the  plaintiff.  The 
ti°on!Tand  answer  of  the  defendant  denies  the  right  of  the  plaintiff  to  proceed 
timerf  sde  directly  against  him,  alleging  that  he  is  only  surety  in  the  warranty 
and  trans-  expressed  in  the  act  of  sale,  and  not  principal.  It  contains  also  a 
the  thcourtf'  general  denial,  and  a  prayer  for  a  jury.  The  cause  was  submitted 
fat™  prT-  to  a  jury  in  the  court  below,  who  found  a  special  verdict,  on  which 
sume  that  judgment  was  rendered  for  the  plaintiff,  and  the  defendant  appealed. 

the  disease  Jo  .  ,      ,  ,,  ,. 

wasincura-  The  jury  find  that  the  slave  in  question,  had  the  consumpti 

and  before  the  time  of  the  sale  and  transfer  to  the  plaintiff,  and 
that  she  died  of  that  disease.  This  finding,  the  defendant  insists, 
does  not  support  the  judgment  thereon  rendered,  because  the  jury 
have  not  found  that  the  disease  was  incurable  in  its  nature.  But 
as  the  jury  do-  not  negative  the  fact  of  its  incurability,  this,  from 
their  finding,  and  other  evidence  in  the  case,  may  have  been  fairly 
intended  by  the  judge.  Judgment  affirmed. 


OF  WARRANTY.  127 

19. 

PRICE  v.  BARR.    Spring  T.  1816.     6  Little's  Rep.  216. 
The  plaintiff  declared,  that  the  defendant,  by  a  certain  writing,  A  warran- 
did  sell  to  the  plaintiff  a  certain  negro  boy  for  $400,  and  did  then  S^ss  means 
and  there,  by  the  said  writing,  warrant  the  said  negro  boy  to  be  Jjj^  l*5Jaf_ 
sound  :  which  said  negro  boy  was  then  and  there,  at  the  time  of  ranted   is 

sound  at 

the  said  sale  and  warranty  unsound.  the  time  of 

The  court  charged  the  jury,  that  if  the  slave  was  unsound  at  the  noet  ^at'  it 
delivery,  it  was  unimportant  whether  he  was  sound  or  unsound  at  sha11  com^ 
the  time  of  the  sale.  thereafter, 

Per  Cur.  Boyle,  Ch.  J.  The  court  below  erred  in  their  instruc 
tions  to  the  jury.  The  court  seems  to  predicate  their  opinion  upon 
the  fact,  that  the  delivery  of  the  boy,  by  the  defendant  to  the  plain 
tiff,  did  not  take  place  until  some  time  after  the  contract  was  made. 
This  will  not  justify  the  opinion  of  the  court.  A  contract  of  sale, 
transfers  the  property  in  the  thing  sold,  from  the  seller  to  the  per- 
chaser,  without  delivery,  insomuch,  that  an  action  of  detinue  may 
be  maintained  by  the  latter  against  the  former,  for  a  detention  of 
the  sale.  1  Chitty's  PI.  118.  And  if  a  future  time  be  agreed  upon 
for  the  delivery,  the  thing  sold  is  at  the  risk  of  the  purchaser,  until 
the  time  of  delivery,  unless  otherwise  stipulated  between  the  parties. 
2  Black.  Com.  452.  ;  Shep.  Touch,  224.  The  seller  may,  indeed, 
bind  himself  by  contract,  to  warrant  the  thing  sold  shall  continue 
sound  after  the  sale  ;  but  in  this  case  the  defendant  is  alleged  to 
have  warranted  the  boy  sound,  and  not  that  he  should  be  so  there 
after. 

20. 

TIMROD  v.  SHOOLBREAD,  1  Bay's  Rep.  324.  ;  LESTER  v.  EX'RS. 
OF  GRAHAM,  1  Const.  Rep.  183.  ;  MITCHELL  v.  DUBOIS, 
1  Const.  Rep.  360.;  ROUPLE  v.  M'CARTY,  1  Bay's  Rep. 

480. 

Assumpsit  for  the  value  of  a  family  of  negroes,  sold  at  auction  The   Iaw 


for  one  hundred  and  seventy  pounds.     One  of  the  negroes  died  warran 

the  next  day  of  the  small  pox,  and  consequently  must  have  been  of  sound- 

infected  before  the  sale.     The  plaintiff  did  not  know  the  negroes  Save  Tn  * 

were  infected.  s°uth  c.a: 

rolma  sold 

Per  Cur.    Burke  and  Bay,  J.     In  every  contract  all  imaginable  for  a  full 
fairness  ought  to  be  observed,  especially  in  the  sale  of  negroes, 
which  are  a  valuable  species  of  property  in  this  country.     It  has 
been  decided  often  in  our  courts,  that  selling  for  a  sound  price 


128  SLAVERY. 

raises  in  law,  a  warranty  of  the  soundness  of  the  thing  sold,  and  if 
it  turns  out  otherwise,  it  is  a  good  ground  for  the  action  of  assump- 
sit,  to  recover  back  the  money  paid.  Powell  on  Cont,  p.  150.  This 
warranty  extends  to  all  faults  known  and  unknown  to  the  seller. 
Verdict  for  the  plaintiff,  deducting  the  value  of  the  dead  negro  at 
the  time  of  sale. 

21. 

TRIBBLE  v.  OLDHAM.     Dec.  T.  1830.      5  J.  J.  Marshall's  Rep. 

139. 

It  is  a  con-  Held  by  the  court,  that  a  warranty  of  soundness  in  a  bill  of  sale 
of  a  slave,  is  an  executory  contract.  It  is  a  contract  to  do  some 
duty.  A  duty  results  from  it;  and  this  obligation  is  not  merely 
implied  —  it  is  express.  The  warranty,  is  a  guarantee  or  assurance 
of  indemnity.  It  is  a  stipulation,  and  a  contract  to  do  some  act. 
Hamilton  v.  Wagner,  2  Marshall's  Rep.  331. 

22. 

DITTO  v.  HELMS  et  a].,  Spring  T.  1829.  2  J.  J.  Marshall's  Rep.  129. 
THE  ONEIDA  MANUFACTURING  SOCIETY  v.  LAWRENCE,  4 
Cowen's  Rep.  440.;  WHITNEY  v.  SUTTON,  11  Wend.  Rep. 
441.  ;  DUFFEE  v.  MASON,  8  Cowen's  Rep.  25. 

No  parti-  Action  on  a  warranty  on  the  sale  of  a  negro  girl,  in  the  follow- 
in  words  :  "The  said  Helms  and  Shackelford  do  forever  warrant 


sary  "to*8"  and  defend  the  title  of  the  said  negro,  from  all  persons  whatever, 
a   warran-  claiming  or  to  claim  her  ;"  and  likewise  state,  that  "we  have  sold 
her  to  said  Ditto  as  a  sound  and  healthy  negro." 

The  question  was,  whether  the  writing  amounted  to  a  warranty, 
or  was  only  an  affirmation  of  the  condition  of  the  slave. 

Per  Cur.  Robertson,  Ch.  J.  We  think  it  amounts  to  a  warranty. 
No  described  form  of  words  is  necessary  to  constitute  a  warranty. 
Any  words  will  be  sufficient  which  will  show  that  it  was  the  inten 
tion  of  the  parties  that  there  should  be  a  warranty. 

23. 
BEAL'S  HEIRS  v.  DE  GRUY.  June  T.  1831.  2  Louisiana  Rep.  468. 

Redhibito-  The  plaintiff,  under  an  order  of  the  court  of  probates,  sold  at 
3J0dfebe  auction  two  slaves  to  the  defendant  for  $1160.  And  this  suit  was 
solved  brought  to  compel  the  defendant  to  comply  with  the  terms  of  sale. 
The  answer  alleged,  that  one  of  the  slaves  was  afflicted  with  an 
incurable  disease.  The  testimony  of  the  physician  was,  that  the  slave 


OF  WARRANTY.  129 

was  afflicted  with  Farices,  and  that  it  had  been  of  long  standing, 

J   case;    and 

and  the  value  of  the  slave  was  diminished  one  third.     The  court  unless  the 
gave  judgment  for  the   reduction  of  price,    and   the   defendant  is  absolute- 


Per  Cur.    Mathews,  J.     In  support  of  the  plaintiff's  right  to  ob-  ty  of  courts 

.       ....  to   make  a 

tain  judgment,  his  counsel  relies  on  the  art.  2496  of  the  Louisiana  fair  deduc- 
Code,  and  a  decision  found  in  8  Martin's  Rep.  313.     That  decision 


was  made  under  an  article   in  the   old  code  similar   to  that  cited  notv°id 

the  sale. 

from  the  new.  It  appears  to  be  difficult  to  reduce  the  doctrine  of 
redhibition  to  any  precise  and  explicit  rules,  calculated  to  answer 
the  ends  of  justice  in  every  case  which  may  arise.  Questions 
relating  to  redhibitory  vices  and  defects  in  things  sold,  must  be 
solved  principally  in  relation  to  the  peculiar  facts  and  circumstan 
ces  of  each  particular  case.  With  regard  to  the  bodily  defects 
and  vices  of  slaves,  our  law  divides  them  into  two  classes  :  one 
denominated  absolute,  and  the  other  relative.  The  former  in  all 
cases  afford  a  legal  ground  of  redhibition  ;  the  latter  may  also  fur 
nish  a  good  cause  for  an  entire  recision  of  the  contract  of  sale,  or  a 
reduction  of  price,  according  to  the  facts  of  each  particular  case. 
In  the  present  suit,  there  is  no  evidence  that  shows  the  disease  of 
the  slave  alleged  to  be  defective,  to  be  of  the  class  defined  as  abso 
lute.  A  physician,  the  only  witness  examined  in  relation  to  it,  who 
was  called  by  the  vendee,  declares  his  opinion,  that  it  is  not  incu 
rable  ;  but  that  from  its  nature,  so  long  as  it  endures,  interruptions 
*o  the  services  of  the  slave  afflicted,  would  be  a  necessary  conse 
quence  ;  that  it  appeared  to  him,  to  have  been  of  considerable 
duration  ;  and  from  this  circumstance,  difficult  of  cure.  He  con 
cludes  the  slave  in  question  to  be  worth  one  third  less  in  conse 
quence  of  the  diseased  state,  than  she  would  be  if  sound.  The 
disease  appears  to  be  an  enlargement  of  the  veins  in  one  of  her  legs. 

On  this  testimony  we  are  obliged  to  determine,  whether  or  not 
the  disease  proven,  constitutes  a  redhibitory  defect. 

The  article  of  the  code  cited,  (2496)  defines  "  redhibition  to  be 
the  avoidance  of  sale,  on  account  of  some  vice  or  defect  in  the 
thing  sold,  which  renders  it  either  absolutely  useless,  or  its  use  so 
inconvenient  and  imperfect  that  it  must  be  supposed  the  buyer 
would  not  have  purchased  it  had  he  known  of  the  vice."  The  arti 
cle  2497  declares,  that  "  apparent  defects,  that  is,  such  as  the 
buyer  might  have  discovered  by  simple  inspection,  are  not  among 
the  number  of  redhibitory  vices."  The  true  meaning  of  this  arti_ 
cle  is  not  very  perspicuous  :  that  is,  whether  the  defect  should  be 
17 


130  SLAVERY. 

open  and  apparent  to  the  buyer  by  a  view  of  the  object  offered  for 
sale  in  the  manner  which  it  is  exhibited  to  his  sight,  or  whether  he 
is  not  bound  to  inspect  and  examine  it  with  the  care  and  caution 
ordinarily  used  by  prudent  men  on  such  occasiDns. 

It  is,  however,  unnecessary  to  give  any  interpretations  to  it  in 
the  present  case,  in  consequence  of  the  conclusion  to  which  the 
article  2501  necessarily  leads  us.  There  is  a  clause  in  this  article, 
which  we  believe  did  not  exist  in  the  old  code,  that  seems  to  con 
trol,  in  a  great  degree,  that  part  of  the  article  (2496)  relative  to 
the  inconvenience  and  imperfection  of  the  use  of  things  pur 
chased. 

After  the  distinction  of  bodily  defects  or  vices  in  slaves  into  abso 
lute  and  relative,  it  is  declared,  that  the  former  are  those  of  which 
the  bare  existence  give  rise  to  the  redhibitory  action.  But  "  rela 
tive  vices  are  those  which  give  rise  to  it,  only  in  proportion  to  the 
degree  in  which  they  disable  the  object  sold."  From  this  we  con 
clude,  that  unless  the  object  sold  be  absolutely  useless,  it  is  rather 
the  duty  of  courts  of  justice  to  make  a  fair  deduction  from  the 
price,  than  entirely  to  avoid  the  sale,  especially,  when  the  real 
value  of  the  thing  bears  any  reasonable  proportion  to  the  price 
agreed  upon.  The  diminution  of  value,  in  consequence  of  the  dis 
ease  of  the  slave,  in  the  present  instance,  is  estimated  by  the 
defendant's  witness  at  one  third  less  than  the  price  stipulated  ; 
and  we  perceive  nothing,  in  the  whole  testimony  of  the  cause, 
which  requires  our  interference,  in  relation  to  the  conclusion  of 
the  court  below,  on  the  relative  value  of  the  two  slaves  purchased 
by  the  defendant. 

24. 

M'FARLANE  v.  MOORE.     Sept.  T.  1805.     1  Overtoil's  Rep  .174. 
2  Bay's  Rep.  17. 

The  defect  Action  upon  the  case  in  the  nature  of  a  deceit.  M'Farlane 
moteriaf  purchased  of  the  defendant  a  negro  woman  for  a  full  price,  and 
took  a  bill  of  sale.  The  declaration  averred,  that  the  slave  had 
been  in  a  sickly  state  for  some  time,  and  that  the  defendant  knew 
of  her  sickness.  A  physician  stated  that  he  thought  her  incurable, 
in  consequence  of  the  improper  use  of  mercury,  and  that  she 
died  soon  after  the  sale.  Verdict  for  the  plaintiff.  Rule  for  a  new 
trial. 

Per  Cur.    Overton,  J.  The  questions  for  the  consideration  of  the 
jury  were,  First.   Was  there  a  defect  in  the  property  sold  ?  Second- 


OF  WARRANTY.  131 

ly.  If  a  defect  existed,  was  it  a  material  one  1  Thirdly.  Did  the 
defendant  know  of  the  defect  before  the  sale  ?  They  found  all 
these  facts  in  favor  of  the  plaintiff,  and  have  assessed  damages  to 
the  value  of  the  negro.  It  has  been  objected,  that  parol  proof  has 
been  improperly  received  ;  that  the  whole  extent  of  the  contract  is 
embraced  by  the  bill  of  sale  ;  and  nothing  can  be  implied  or  pre 
sumed  ;  but  suggestio  falsi  and  suppressio  veri  are  sufficient  to  invali 
date  a  contract  on  the  ground  of  fraud.  And  the  reception  of 
evidence  to  show  the  soundness  or  unsoundness  of  the  woman,  at 
the  time  of  the  sale,  does  not  contradict  or  vary  the  bill  of  sale. 

25. 

SMITH  v.  MILLER.    Fall  T.  1812.     2  Bibb's  Rep.  616. 

The  appellee  sold  to  the   appellant,  a  negro  boy,  evidenced  by  Where 
writing,   in  these  words  :  "  RecM  of  Wm.  Smith,  of  Lexington,  ™ 

$300  for  a  negro  boy  named  Abram,  which  negro  is  sound  and 


healthy,  and  I  warrant  the  title  of  said  boy  against  the  claim  or  verredthat 

the  defend- 

claims  of  every  person  whatever,  as  witness  my  hand  this  26th  of  antfcwewof 
March,  1810."     The   appellant  moved  the  court  to  instruct  the  soundness. 
jury,  that  if  they  were  of  opinion  that  the  defendant  sold  the  ne 
gro  in  the  declaration  mentioned  to  the  appellant,  with  a  warranty 
of  his  soundness,  that  the  negro,  at  the  time  of  the  sale  and  warran 
ty,  was  unsound,  and  of  which  unsoundness  he  afterwards  died,  that 
the  appellant  had  a  right  to  recover  such  damages  as  they  should 
think  he  was  entitled  to  from  the  evidence.      The  court  refused  to 
give  the  instruction,  and  the  appellant  appealed. 

Per  Cur.  Owsly,  J.  This  bill  of  sale,  which  affirms  that  the  negro 
is  sound,  does  not  amount  to  an  express  warranty  of  soundness. 
That  the  appellee  did  not  intend  to  warrant  the  negro  sound,  we 
think  evident  from  the  writing.  It  contains  an  acknowledgment 
of  the  receipt  of  the  money  for  which  the  negro  was  sold  ;  a  repre 
sentation  that  he  was  sound,  and  an  express  warranty  of  title. 
Had  the  appellee  intended  to  warrant  the  negro  sound,  it  is  most 
reasonable  to  suppose  the  warranty  would  have  been  so  worded 
as  to  embrace  it.  Where  there  is  no  express  warranty,  but  only 
an  affirmation  of  soundness  at  the  time  of  sale,  in  an  action  for  a 
false  affirmation,  the  declaration  should  charge  that  the  vendor 
knew  the  article  was  unsound.  Here  there  is  no  such  averment  ; 
and  having  declared  on  the  warranty  of  soundness,  when  there  is 
none,  the  judgment  of  the  circuit  couri  must  be  affirmed. 


132 


SLAVERY. 


26. 

LEWIS  v.  COOPER.     Feb.  T.  1814.     1  Cook's  Rep.  467. 
Extent    of      The  court  left  the  question  undecided,  whether  the  warranty  of 
asTo™?-  title  of  a  negro  woman,  would  extend  to  the  increase. 

crease. 

27. 

GLASSCOCK   v.  WELLS.      1813.     1  Cook's  Rep.  262.  ;  S.   P. 
BALDWIN  v.  WEST,  Hard.  Rep.  50. 

Generally.  Tne  court  helcl»  that>  uPon  a  warranty,  the  vendor  is  liahle  for 
defects  not  known  at  the  time  of  the  sale  :  but  he  is  not  liable  for 
unknown  defects  if  he  make  no  warranty. 

28. 
WATERS  v.  MATTINGLY.    Fall  T.  1808.     1  Bibb's  Rep.  244. 

The  defendant  sold  the  plaintiff  a  horse,  and  warranted  him 
sound.  It  was  proved  that  the  horse  was  unsound,  immediately 
after  jje  came  into.  the  possession  of  the  plaintiff.  The  court, 
Edwards,  Ch.  J,  held,  that  where  there  was  an  express  represen 
tation,  which  turns  out  untrue,  it  is  immaterial  whether  the  party 
making  it  knew  it  to  be  false,  or  not.  Bibb.  Prather  de  Pr.  Dec. 
153.  ;  Pile  v.  Shannon,  Har.  55.  ;  Ferrin  v.  Taylor,  3  Cranch,  270. 

The  same  principle  was  decided  by  Judge  Cranch,  in  Stewart 
v.  Johnson,  June  T.  1820,  circuit  court  U.  S.,  Washington,  (MS.) 


And  the 


any    other 


HANCOCK  v.  SHIP. 


29. 

Spring  T.  1829. 
437. 


1    J.  J.  Marshall's  Rep. 


Suit  on 


Cur.  Robertson,  Ch.  J.  The  objection  to  the  declaration  is 
not  valid.  Although  a  written  warranty  be  given,  an  action  on 
the  case  may  be  sustained  for  fraud  in  the  warranty.  Such  suits 
are  not  unusual.  They  are  sustained  by  authority  and  principle. 
For  the  simple  warranty  suit  must  be  brought  "  ex  contractu"  and 
of  course  must  be  covenant,  if  the  warranty  be  in  writing.  But 
whether  it  be  written  or  parol,  suit  for  a  fraud  in  making  it,  should 
be  case  ex  delicto. 


OF  WARRANTY.  133 


(B.)    OF    THE    WARRANTY    OF    MORAL   QUALITIES. 
1. 

XENES    v.  TAQUINTO    et    al.      April  T.  1829.      19  Martin's 
Louisiana  Rep.  678. 

Per  Cur.     This  is  an  action  of  redhibition  to  annul  the  sale  of  DrankeH- 
a  slave,  and  recover  part  of  the   price  for  her,  and  to  be  exone-  mental,  not 
rated  from  the  payment  of  the  balance  due.    The  general  issue  aJtect/and 
was  pleaded  in  the  court  of  the  first  instance,  and  the  defendant's  is  not.  a  . 

ground    of 

vendor  cited  in  warranty.  The  cause  was  submitted  to  a  jury  redhibi- 
who  found  for  the  plaintiff.  Judgment  was  rendered  on  this  ver 
dict  against  the  defendant,  and  in  his  favor  against  Shift,  from 
whom  he  had  purchased.  From  this  judgment,  both  the  defend 
ants  and  the  party  called  in  warranty,  have  appealed.  The  vice, 
to  which  the  slave  is  charged  in  the  petition  to  be  subject,  is  ha 
bitual  drunkenness.  The  evidence  establishes  satisfactorily  the 
allegation.  The  only  question,  therefore,  presented  for  our  deci 
sion,  is,  whether  the  defect  be  such  a  one  as  authorizes  the  pur 
chaser  of  a  slave  to  it,  to  have  the  sale  rescinded. 

The  purchase  was  made  since  the  enactment  of  the  late  amend 
ments  to  our  code,  and  must  be  governed  by  them.  The  2496th 
article  of  that  work  defines  redhibition  to  be,  "tthe  avoidance  of 
a  sale  on  account  of  some  vice  or  defect  in  the  thing  sold,  which 
renders  it  either  absolutely  useless,  or  its  use  so  inconvenient  and 
imperfect,  that  it  must  be  supposed  the  buyer  would  not  have  pur 
chased  it  had  he  known  of  the  vice." 

The  2500th  article  divides  the  defects  of  slaves  into  two  classes: 
vices  of  body,  and  vices  of  character.  In  the  2502d,  some  of 
the  vices  of  the  body  are  defined,  and  others  are  stated  to  be  con 
tained  in  the  2496th  article,  which  we  have  already  cited.  But 
with  regard  to  those  of  character,  the  next  article  expressly  de 
clares,  that  they  are  confined  to  cases  where  the  slave  has  commit 
ted  a  capital  crime,  where  he  is  convicted  of  theft,  and  where  he 
is  in  the  habit  of  running  away.  No  reference  is  made,  as  in  the 
article  relating  to  their  bodily  defects,  to  the  previous  provision 
which  mak  es  any  disease  a  cause  of  redhibition,  which  renders  the 
services  of  the  slave  so  difficult  and  interrupted,  that  it  is  presumed 
the  buyer  would  not  have  purchased  had  he  been  aware  of  them, 


134  SLAVERY. 

And  that  the  failure  to  make  the  reference  did  not  proceed 
from  inattention,  is  manifest  by  the  2506th  article,  which  succeeds 
that  just  noticed,  wherein  the  defects  in  other  animals  are  extended 
to  the  cases  supposed  in  the  2496th.  So  that  the  cause  turns  on 
the  inquiry,  is  drunkenness  a  vice  of  body,  or  of  character  1  Is 
it  mental,  or  physical  1  We  think  it  must  be  classed  among  the 
vices  which  our  code  denominates  those  of  character.  It  has  of 
late,  we  believe,  been  made  a  question  by  physiologists,  whether  the 
disposition  to  an  immoderate  use  of  ardent  spirits,  did  not  arise  as 
much  from  physical  temperament  as  from  moral  weakness.  In 
cases  of  long  indulgence  in  the  habit,  it  is  quite  probable  the  body 
may  require  a  continuance  of  the  stimulus,  and  that  the  desire  for 
the  use  of  it  may  spring  as  much  from  physical  lassitude,  as  from 
moral  depravity.  But  on  this  subject  the  court  has  a  safer  guide 
than  the  conflicting  opinions  of  medical  men.  By  the  ancient  ju 
risprudence  of  the  country,  the  vice  of  drunkenness  was  consi 
dered  one.  of  the  mind.  And  the  terms  used  in  our  legislation 
must  be  understood  in  the  sense  in  which  they  were  used  in  that 
jurisprudence,  unless  another  meaning  be  expressly  given  to  them 
by  legislative  authority.  We  conclude,  then,  that  the  allegation 
made  in  the  petition  does  not  furnish  ground  for  setting  aside  the 
sale.  It  has  been  contended,  that  there  was  fraud  in  the  defend 
ant  concealing  from  the  plaintiff  the  defect  to  which  the  slave 
was  addicted.  But  unless  the  vice  was  one  which  furnished  ground 
for  redhibition,  there  was  no  fraud  in  concealing  it,  or,  in  other 
words,  there  was  no  obligation  in  the  seller  to  communicate  it  to 
the  buyer. 


GAILLARD  v.  LABAT  et  al.  Dec.  T.  1835.  9  Louisiana  Rep.  17. 

But  a  frau-      The  plaintiff  alleged  in  his  petition,  that  he  had  purchased  of  the 

ceafmlntof  defendant  a  slave,  named  Marie  Jeanne,  and  her  daughter  Cecilia, 

it,  will  be  a  for  the  price  of  $1000,   for  a  house  servant;  that  the  defendant 

rescinding    knew  that  the  slave  was  an  habitual  drunkard,  and  not  worthy  to  be 

tract.C°        trusted  ;   and  prays  the  sale  may  be  avoided  as  fraudulent,  and  the 

defendant  be   compelled  to  refund  the  price.     The  jury  found  a 

verdict  for  the  plaintiff,  rescinding  the  sale,  and  restoring  the  slaves 

to  the  defendant,  and  requiring  him  to  return  the  price.     The  de 

fendant  appealed. 

Per  Cur.     Bullard,  J.     This  is  not  an  action  for  redhibition. 
The  plaintiff  claims  a  recision  of  the  contract,  not  on  the  ground 


OF  WARRANTY.  135 

that  such  a  habit  forms  a  redhibitory  defect  in  a  slave,  but  on  the 
alleged  false  assertion,  on  the  part  of  the  defendant,  of  the  quali 
ties  of  the  slave  in  question,  on  a  fraudulent  concealment  of  her 
vices  and  defects,  and  he  relies  upon  article  1841  of  the  Louisiana 
Code.  But  whether  the  defendant  knew  of  the  existence  of  the 
vice  of  drunkenness,  and  concealed  it,  is  a  question  for  the  jury, 
and  judgment  rescinding  the  sale  will  be  affirmed,  when  the  ver 
dict  finding  the  fraud  is  not  so  unsupported  by  evidence  as  to 
authorize  the  court  to  disturb  it. 

3. 

CHRETIEN  v.  THEARD.     June  T.  1824.     14  Martin's  Louisiana 

Rep.  582. 

Per  Cur.     Porter,  J.     This  is  a  redhibitory  action,  in  which  the  An  allega- 
plaintiff  seeks  to  return  a  slave  he  purchased  from  the  defendant, 
and  get  back  the  price.       The  defect  alleged  is,  that  the  slave  is 


a  thief,  and  addicted  to  robbery,  and  it  is  further  charged,  that  the  evidence 
vendor  knew  he  had  those  vices,  at  the  time  he  sold  him.  The  in  the  habit 
evidence  establishes,  very  satisfactorily,  that  the  slave  was  a  thief  of  stealms- 
at  the  time  he  was  sold  ;  —  that  he  committed  theft  after  he  came 
into  the  possession  of  the  plaintiff;  and  that  the  defendant  well 
knew  he  was  addicted  to  this  vice  at  the  time  he  sold  him.  Several 
grounds  of  defence  have  been  presented  in  this  court  against  the 
right  of  the  petitioner  to  recover.  First.  That  the  allegations  in  the 
petition  do  not  correspond  with  the  proof.  The  first  objection 
was  supported  by  the  counsel  for  defendant,  on  the  ground  that 
the  petition  charged  the  slave  with  being  addicted  to  robbery,  and 
that  the  evidence  went  to  prove  he  was  in  the  habit  of  stealing.  A 
recurrence  to  the  petition  shows  that  this  exception  is  not  well 
founded.  It  does  not  merely  charge  that  the  slave  was  addicted 
to  robbery.  It  avers  also,  that  he  was  a  thief;  that  he  had  a  pro 
pensity  to  thieving,  and  it  sets  out  a  particular  act  of  larceny. 
These  allegations  fully  authorized  the  introduction  of  the  evidence 
taken  on  the  trial,  and  even  if  they  did  not,  the  defendant  could 
not  claim  the  benefit  of  the  variance  in  this  court,  when  he  suffered 
the  proof  to  be  received  without  objection,  in  that  of  the  first 
instance. 


136  SLAVERY. 

4. 
-''       OWEN  v.  FORD.  Nov.  T.  1823.     1  Harper's  Rep.  25. 

In  South  Per  Cur.  Richardson,  J.  In  the  case  of  Richard  Smith  v. 
there  'iTno  M'Call,  1  M'Cord's  Rep.  220.,  this  court  decided,  that  there  is  no 
implied  implied  warranty  of  the  moral  qualities  of  a  slave  arising  from  the 

warranty  01 

the    moral  mere  sale  and  price  paid.     As  where  a  slave  was  sold  who  had 

a  slave6*  °    committed  burglary,  the  fact  being  unknown  to  both  the  seller 

and  the  purchaser.     After  the  sale  the  slave  was  convicted,  and  his 

ears  were  cropped,  held,  that  the  implied  warranty  did  not  extend 

to  the  loss  of  the  value  of  the  slave  by  the  punishment. 

5. 

AILS   v.    BOWMAN.    March    T.    1831.    2   Louisiana   Rep.  251. 


The  habit  ^er  ^UT'  ^ar^n>  J-  There  is  only  evidence  of  the  slave 
of  running  having  ran  away  once  while  in  the  appellee's  possession,  and  this 

away  is  not  .  c        "  . 

made    out  does  not  constitute  a  habit  oi  running  away. 

by  proof  of 

one    act.  Q 

BOCOD   v.    JACOBS.     May    T.    1831.     2   Louisiana   Rep.   408. 

Evcnim-  ?er  ^UT'  Martin,  J.  Circumstances  posterior  to  the  sale,  may 
mediately  have  some  weight  in  the  scale  of  evidence,  in  determining  on  the 
sale.  existence  of  a  previous  habit ;  but  we  do  not  think  that  the  mere 

fact  of  running  away  immediately  after  the  sale,  added  to  a  single 

instance  before,  may  be  received  as  evidence  of  an  anterior  habit. 

It  may  be  the  consequence  of  he  displeasure  of  being  sold,  or  of 

his  dislike  of  the  owner. 

7. 

DUNCAN  v.    COVALLUS'  EX'RS.  January  T.  1817.   4   Martin's 
Louisiana  Rep.  571. 

If   a   slave 

be  descri-  per  Cur.  Martin,  J.  The  petition  states  that  the  plaintiff 
bill 'of  sale  purchased  from  the  defendants  a  negro  slave  for  $900,  under  the 
assurance  they  gave  him,  that  he  was  a  good  domestic,  good  coach- 
,  et  man  anci  cr00d  brickmaker,  and  possessed  of  the  confidence  of  his 

briquetier, 

and  he  be  former  owner,  whose  executors  they  are  ;  that  there  has  been  a 
gross  fraud  practised  on  him  by  the  defendants ;  that  the  plaintiff, 
fullv  conncling  in  the  assurance  they  gave  him,  signed  the  bill  of 

coachman,  sai6)  without  reading  it ;  not  believing  that  any  thing  contained 
™  therein  would  have  been  inserted  contrary  to,  or  in  opposition  of 
the  formal  assurances  given  him,  in  relation  to  the  qualities  of  the 


OF  WARRANTY.  137 

slave,  in  which  he  avers  he  was  deceived.  The  petition  next  sets 
forth,  that  the  slave  has  made  several  attempts  to  run  away,  and  is 
by  habit  a  drunkard  and  thief,  and  was  in  the  said  bad  practices 
long  before  the  sale,  at  least  in  the  knowledge  of  one  of  the  defend 
ants.  It  concludes  with  a  prayer  for  the  recision  of  the  sale. 
Urquhart,  one  of  the  defendants,  being  interrogated  by  the  plaintiff, 
answers,  that  he  gave  no  assurances  as  to  the  virtues,  vices,  or  talents 
of  the  slave  ;  that  he  knew  nothing  of  him,  except  that  he  called 
himself  a  coachman.  The  bill  of  sale  was  introduced  as  evidence 
of  the  assurances  stated  in  the  petition ;  the  defendants  therein 
warrant  the  negro  sold,  free  from  redhibitory  diseases  only,  as  well 
as  of  any  lien  or  mortgage,  but  not  as  to  any  redhibitory  vice, 
declaring  that  they  do  not  know  the  slave.  In  the  description  of 
him,  he  is  stated  to  be  25  years  of  age,  a  good  domestic,  coachman 
and  brickmaker:  bon  domestique,  coc/ier,  et  brequetier.  Four  witnes 
ses,  introduced  by  the  plaintiff,  declared,  that  the  slave  was,  from 
he  moment  he  was  taken  into  the  family  of  the  plaintiff,  that  is, 
immediately  after  the  sale,  a  worthless,  idle,  drunken  fellow,  and 
knew  nothing  of  the  business  of  a  coachman.  A  witness  intro 
duced  by  the  defendants  deposed,  that  he  knew  the  slave,  who 
was  the  deceased's  coachman,  and  bore  a  good  character  ;  another, 
the  deceased's  overseer,  deposed  he  knew  the  slave  during  a  period 
of  two  years,  while  he  belonged  to  the  deceased  ;  that  he  was  at 
first  employed  as  a  brickmaker,  was  next  the  deceased's  coach 
man,  and  afterwards  as  the  driver  of  his  other  slaves  ;  that  he  was 
a  very  faithful  servant,  and  had  the  confidence  of  his  master,  who 
was  very  severe  to  his  slaves  ;  that  he  saw  the  negro  drunk  but 
once,  and  he  never  attempted  to  run  awa}/ ;  that  the  deceased  gave 
$1800  dollars  for  him  and  his  wife.  On  this  the  district  judge  gave 
judgment  for  the  plaintiff.  The  defendants  appealed. 

The  statement  of  facts  is  composed  of  the  bill  of  sale,  and  the 
depositions  of  the  above  witnesses,  and  the  defendant's  counsel  has 
waived  any  objection  to  the  want  of  an  averment  in  the  petition  of 
the  falsity  of  so  much  of  the  bill  of  sale  as  relates  to  the  slave  being 
a  good  coachman  ;  he  contends,  that  they  are  not  liable  for  any  but 
physical  or  bodily  defects,  having  declared  that  the  warranty  did 
not  extend  to  moral  ones,  vices ;  and  that  the  plaintiff  has  failed  in 
the  proof  of  the  knowledge,  in  the  defendants,  of  any  circumstance 
which  they  were  bound  to  disclose.  That  the  allegation,  that  the 
slave  £was  sold  as  a  good  domestic,  a  good  coachman,  and  a  good 

brickmaker,  is  not  supported  by  the  proof  offered  ;  the  bill  of  sale 

18 


138  SLAVERY. 

representing  the  slave  as  a  coachman,  not  a  good  coachman  ;  that 
the   defendants,  knowing  the  slave  to  have   been  the  deceased's 
coachman,  might  well  describe  him  as  a  coachman  ;  that  in  the 
phrase  used,  the  adjective,  according  to  the  French  language,  go 
verns  only  the  substantive,  which  it  immediately  precedes,  and  is  not 
necessarily  applicable  to  others  in  the  phrase,  bon  domesiique,  co 
cker  briquetier;  that,  if  it  be  doubtful  whether  the  adjective  is  to  be 
extended  to  the  two  last  substantives,  the  construction  must  be  in 
favorum  solutionis.     That  these  witnesses  prove,  that  the  slave  was 
a  good  domestic,  since  he  had  been  selected  to  oversee  his  fellow 
servants ;  had  a  good  character ;  that  he  never  attempted  to  run 
away,  and  was  seen  drunk  but  once  in  two  years.     The  plaintiff's 
counsel  contends,  that  he  has  proved  that  the  slave  was  deficient 
in  the  quality  which  induced  him  to  purchase  ;    that  he  knew 
nothing  of  the  business  of  a  coachman ;  that  he  was  not  a  good 
domestic,  since  four  witnesses  swear  that  he  has  been,  ever  since 
the  purchase,  an  idle,  icorthless,  and  drunken  fellow.     This  court  is 
of  opinion,  that  the  evidence,  introduced  by  the  defendants,  repels 
all  the  allegations  of  fraud  made  by  the  plaintiff,  and  supports  the 
averment  they  made,  that  the  slave  sold   was  a  good  domestic,  a 
coachman,  and  brickmaker ;  for  we  think,  with  their  counsel,  that 
the  adjective  bon,  does  not  necessarily  attach  to  any  but  the  imme 
diate  substantive,  domestique,  and  that  if  there  be  any  doubt,  the 
construction  ought  to  be  made  so  as  to  lessen,  rather  than  to  in 
crease  the  obligation.    Perhaps  a  literal  translation  into  the  English 
language  might  present  a  different  idea.     And  the  rule  of  the  com 
mon  law  of  England  is  in  opposition  to  that  which  we  are   to 
follow.     The   common  law  says,    verba  fortius  accipiunter  contra 
proferentem ;  the  civil  law  requires  the  constructions  to  be  in  favo 
rum  solutionis.     Neither  is  the  testimony  of  defendant's  witnesses 
much  weakened  by  that  of  those  of  the  plaintiff's,  though  the  latter  be 
more  numerous.     These  swear,  that  the  slave  knew  nothing  of  the 
business  of  a  coachman,  and  is  an  idle,  worthless,  and  drunken  fellow. 
He  might  conceal  his  skill  from  his  dislike  of  a  new  master  ;  a  great 
indulgence  might  render  him  idle,  and  free  access  to  liquors  might 
induce  him  to  drink  to  excess  ;  and  he  consequently  would  appear 
idle,  drunk,  and  worthless. 

But  this  does  not  disprove  what  is  sworn  on  the  opposite  side  : 
that,  previous  to  the  sale,  under  a  severe  master,  he  was  a  faithful  ser 
vant,  bore  a  good  character,  and  possessed  the  confidence  of  the 
deceased  ;  circumstances  which  strongly  justify  the  assertion  of 
the  defendants,  that  he  was  a  good  domestic.  The  depositions  of 


OF  WARRANTY.  139 

the  plaintiff's  witnesses  do  not  disprove  what  is  sworn  by  those  of 
the  defendants,  that  the  slave  was  a  coachman  and  brick  maker. 
Judgment  for  defendants. 

8. 
ICAR  v.  SUARS.     January  T.  1835.     7  Louisiana  Rep.  517. 

This  was  a  redhibitory  action  to  annul  the  sale  of  a  slave,  and  re-  Craziness 
cover  back  the  price,  on  the  ground  of  redhibitory  vice  of  craziness.  f/ 
The   plaintiff  alleged,  that  he  purchased  of  the  defendant  a  slave 
named  Kate,  for  which  he  paid  $500,  and  in  two  or  three  days  it  is  not  ap- 
after  it  was  discovered  the  slave  was  crazy,  and  run  away,  and  that  annul  'the 
the  vices  were  known  to  the  defendant. 

The  witnesses  stated  she  was  very  stupid  ;  that  on  being  told  to 
do  one  thing  she  would  do  another;  and  that  she  was  unsafe  to  be 
trusted  about  the  house,  on  account  of  the  danger  of  setting  fire  to 
it ;  that  she  wandered  off,  and  was  finally  put  in  the  parish  jail  of 
an  adjoining  parish,  as  a  runaway. 

The  district  judge  gave  judgment,  that  with  regard  to  the  mental 
malady  of  the  slave,  the  evidence  and  a  personal  inspection  satis 
fied  him  she  was  so  far  destitute  of  mental  capacity  as  to  render 
her  either  absolutely  useless,  or  the  use  so  inconvenient,  that  it 
was  to  be  presumed  the  buyer  would  not  have  purchased  had  he 
known  of  the  vice.  The  defendant  appealed. 

Per  Cur.  Bullard,  J.  It  was  contended,  that  Kate  was  not 
crazy,  but  only  stupid,  and  stupidity  is  not  madness ;  but,  on  the 
contrary,  an  apparent  defect,  against  which  the  defendant  did  not 
warrant.  Mere  dulness  of  look  is  certainly  apparent ;  but  that 
degree  of  stupidity  or  want  of  intelligence,  which  results  from  a 
defective  organization,  is  rather  idiocy  than  stupidity.  The  code 
enumerates  madness  (folie,)  among  the  absolute  vices  of  slaves 
which  give  rise  to  the  action  of  redhibition. 

Whether  the  subject  of  this  action  is  idiotic  from  nativity,  or 
is  laboring  under  one  of  the  numberless  derangements  of  an  intel 
lect  originally  sound,  is  a  question  which  cannot  be  answered, 
without  further  knowledge  of  her  history,  than  the  record  affords. 
Nor  do  we  consider  it  material,  inasmuch  as  the  code  has  declared, 
that  a  sale  may  be  avoided  on  account  of  any  vice  or  defect,  which 
renders  the  thing  either  absolutely  useless,  or  its  use  so  inconveni 
ent  and  imperfect,  that  it  must  be  supposed  the  buyer  would  not 
have  purchased  with  a  knowledge  of  the  vice.  We  are  satisfied 
that  the  slave  in  question  was  wholly,  and  perhaps  worse  than 
useless. 


140  SLAVERY. 

9. 

LANDREAUX  et  al.  v.  CAMPBELL.     June  T.  1830.    20  Martin's 
Louisiana  Rep.  478. 

When  the  Mathews,  J.,  delivered  the  opinion  of  the  court.  This  is  a  red- 
redhibitory  hibitory  action,  in  which  the  plaintiffs  claim  restitution  of  the  price 
not  mani-  of  a  slave,  named  Ned,  which  they  allege  was  affected  with  the 
within*18  absolute  vice  of  madness,  (as  denominated  by  the  La  Code,)  at 


after6  the78  ^  time  ^e7  Purc^ase(^  m'm  from  ^  defendant.     They  obtained 
sale,     evi-  judgment  in  the  court  below,  from  which  the  latter  appealed.     A 

dericemust    ,  ,,  r   /, 

be  given  of  decision  of  the  cause  depends  principally  on  matters  ol  met,  ap- 
Plicable  to  the  provisions  of  the  2508th  art.  of  the  code.  Ac 
cording  to  these  provisions,  "  a  buyer  who  institutes  the  redhibito- 
ry  action  must  prove,  that  the  vice  existed  before  the  sale  was 
made  to  him.  But  when  it  has  made  its  appearance  within  three 
days  immediately  following  the  sale,  it  is  presumed  to  have  existed 
before  the  sale."  In  the  present  case  there  is  no  evidence  which 
shows  the  existence  of  the  malady  or  vice  previous  to  the  sale. 
Several  witnesses  were  examined  on  the  part  of  the  defendant,  who 
proved  the  soundness  of  the  slave  in  question  previous  to,  and  at 
the  time  he  was  sold  to  the  plaintiff.  The  act  of  sale  was  passed 
at  Natchez,  on  the  4th  of  January,  1828,  and  recorded  in  the 
office  of  a  notary,  in  the  city  of  New-Orleans,  on  the  12th  of  the 
same  month.  The  precise  time  at  which  Ned  (together  with  other 
slaves  bought  at  Natchez,  and  conveyed  to  the  plaintiff  by  the  same 
act,)  arrived  on  the  plantation  of  the  puchasers,  is  not  shown  by 
the  testimony  of  the  cause.  There  were  three  witnesses  examined 
for  the  appellees,  two  by  commissions  on  interrogatories,  and  one 
in  open  court.  The  first  of  these  appears  to  have  been  the  over 
seer  of  the  plaintiffs  at  the  period  when  the  slaves  were  brought  to 
their  plantation,  and  is  the  only  one,  who  according  to  the  facts 
declared  in  the  testimony  of  all  three,  was  in  a  situation  to  discover 
any  appearance  of  madness  in  Ned  within  three  days  after  the  sale. 
He  states  that  he  remained  on  the  plantation  from  the  arrival  of  the 
slaves,  some  time  in  January,  until  the  6th  of  February,  or  about 
one  month  after  they  were  placed  under  his  management.  During 
that  period  he  declares  that  he  did  not  perceive  that  the  negro 
was  attacked  by  any  infirmity  cFacune  injirmite  ;  he  only  appeared 
to  be  of  a  feeble  constitution,  was  lazy,  and  would  not  work  with 
out  being  constantly  watched  ;  and  when  out  of  sight  of  the  over 
seer,  he  would  quit  his  work  and  wander  from  one  place  to 
another,  gesticulating  alone,  tout  szul  This  testimony  certainly 


OF  WARRANTY.  141 

exhibits  great  defects  in  the  slave,  but  does  not,  in  our  opinion, 
amount  to  proof  of  madness  ;  at  all  events,  of  its  appearance  within 
three  days  from  the  time  of  purchase.  And  there  is  no  proof  that 
he  was  subject  to  any  mental  derangement  previous  to  that  period. 
Considering  the  many  frauds  which  are  practised  on  purchasers, 
by  professed  dealers  in  this  species  of  property,  we  have  reluctantly 
come  to  a  conclusion  on  the  facts  different  from  that  at  which  the 
judge,  a  quo,  arrived.  But  it  is  believed  by  us,  that  the  plaintiffs  have 
not  sustained  their  claim  for  redhibition  by  such  proof  as  is  re 
quired  by  law. 

10. 

ZARICO  v.  HABINE.     March  T.   1818.      5  Martin's   Louisiana 

Rep.   372. 

The  plaintiff,  as  executrix  to  her  late  husband,  caused  the  pro-  The  ven- 
perty  of  his  estate  to  be  sold  at  public  auction,  under  the  authority 


and  directions  of  the  court  of  probates,  when  the  defendant,  through  therecision 

of  the  sale, 

an  agent,  bid  for  a  negro  man,  was  adjudged  her,  and  immediate-  on  account 


ly  delivered  to  her  said  agent,  who   directed  him  to  go  to  the  de- 
fendanfs.      The  negro,  on  his  way,  made  his  escape,  and,  being  mitted  by 

i  •         •  •    i  T    the    slave 

pursued,  committed  an  assault,  with  intent  to  murder,  for  which  immediate- 


he  was  tried  and  condemned  to  death,  but  afterwards  pardoned  8aie.e 
and  released.  The  defendant  having  refused  to  receive  him,  the 
present  suit  was  brought  against  her.  One  of  the  grounds  on 
which  she  resisted  the  plaintiff's  demand,  was,  that  if  there  was  a 
sale,  it  ought  to  be  annulled,  on  account  of  a  redhibitory  vice  in 
the  slave.  There  was  judgment  for  the  plaintiff,  and  the  defend 
ant  appealed. 

Per  Cur.  Derbigny,  J.  We  now  come  to  the  second  plea  of 
the  appellant,  to  wit,  the  existence  of  a  redhibitory  vice  in  the  pro 
perty  sold.  The  success  of  this  plea  rests  upon  the  following  cir 
cumstance  :  Immediately  after  the  sale  and  delivery,  this  slave, 
instead  of  going  where  the  appellant's  agent  sent  him,  ran  off,  was 
pursued,  and  committed  an  assault,  for  which  he  was  condemned 
to  death,  and  afterwards  pardoned.  From  this  the  appellant  con 
cludes,  that  the  slave  had  a  redhibitory  vice  previous  to  the  adjudi 
cation.  To  support  this  allegation,  he  relies  on  the  following  arti 
cle  of  our  code,  as  governing  this  case,  to  the  exclusion  of  all 
testimony  :  "  If  the  defect  appears  immediately  after  the  sale,  or 
within  the  three  following  days,  it  shall  be  presumed  that  said  de 
fect  existed  before  the  sale,  or  at  the  time  it  was  made."  This 


142  SLAVERY. 

provision  seems  to  have  been  intended  for  cases  of  latent  bodily 
defects,  the  origin  of  which  is  uncertain.  But  as  the  appellant 
insists  upon  its  applicability  to  his  case,  let  us  see  how  it  will  bear 
•  the  application.  The  vice,  if  any  existed,  was  one  of  temper  and 
disposition.  Those  are  limited  to  three  sorts  :  "  Having  been 
guilty  of  some  capital  crime,  being  addicted  to  robbery,  or  in  the 
habit  of  running  away/'  The  first  vice  does  not  admit  of  the  ap 
plication  of  the  rule,  that  a  man  has  been  guilty  of  a  capital  crime, 
and  is  not  to  be  presumed  from  his  subsequent  conduct.  The  law 
does  not  speak  of  any  such  thing  as  the  habit  of  committing  crimes, 
but  of  a  crime  committed.  The  second  vice  has  nothing  to  do 
with  this  case.  The  third,  and  last,  is  the  habit  of  running  away. 
This  slave,  it  is  said,  ran  off,  instead  of  going  where  the  appellant's 
agent  had  told  him  to  go.  Must  this  be  received  as  a  legal  pre 
sumption  that  he  was  in  the  habit  of  running  away  1  Shall  a  slave 
who  changes  masters,  and  runs  off  to  avoid  going  with  him,  be 
presumed  to  be  in  the  habit  of  running  away  1  Surely  no  such 
presumption  can  arise  from  this  fact.  Supposing,  then,  the  article 
relied  on  to  be  at  all  applicable  to  this  kind  of  vice,  still,  the  fact  in 
this  case  does  not  authorize  the  presumption,  so  far  as  to  render  it 
unnecessary  to  support  it  by  other  proof,  or  to  exclude  contrary 
testimony.  The  district  judge,  therefore,  acted  correctly  in  ad 
mitting  testimony  as  to  the  character  of  the  slave  ;  and  that  tes 
timony  having  been  perfectly  satisfactory  on  the  part  of  the  plain 
tiff,  the  plea  of  the  defendant  must  fail.  Judgment  affirmed. 

11. 

ANDRY  et  al.   v.   FOY.     July  T.  1819.     7  Martin's  Louisiana 

Rep.  33.  44. 


What  a  ^er  @ur'     Martin,  J.     At  the  request  of  the  defendant,  a  re 

mounts  to  hearing  has  been  had  in  this  case,  on  the  question  whether  Ho- 
running  a-  race  and  Boucaud,  two  of  the  slaves  sold  by  the  defendant  to  the 
plaintiffs,  were  really  in  the  habit  of  running  away,  at  the  time  of 
the  sale,  so  as  to  entitle  the  plaintiffs  to  their  redhibitory  action. 
The  fact  was  found  against  the  defendant  by  the  jury,  in  the  parish 
court  ;  and,  although  this  circumstance  is  not  conclusive  on  the 
appeal,  it  cannot  fail  to  have  some  weight.  Horace  was  purchas 
ed  by  the  defendant  in  March,  1808,  and  his  vendor  then  expressly 
excluded  the  legal  warranty  against  such  vices,  which  the  law  con 
siders  as  redhibitory  ones,  viz.  capital  crimes,  robbery,  and  the 
habit  of  running  away.  This  appears  by  the  bill  of  sale  on  re- 


OF  WARRANTY.  143 

cord  ;  and  the  vendor  did  declare,  that  Horace  ran  away  from 
him,  and  was  absent  seven  consecutive  months  ;  during  which  he 
went  to  New  York,  Liverpool,  and  Charleston,  where  he  was  ar 
rested  and  brought  to  New  Orleans  ;  where,  five  weeks  after,  he 
sold  him  to  the  present  defendant,  informing  him  he  was  a  runa 
way  ;  and  he  was  sold  as  such.  It  is  in  evidence,  that  Boucaud 
was  brought  to  jail  as  a  runaway  before  the  sale  to  the  plaintiff, 
and  that  he  has  since  run  away  twice.  In  the  sale  of  Boucaud 
to  the  defendant,  the  vendor  warrants  only  against  the  maladies 
for  which  the  Jaw  grants  a  redhibitory  action.  The  counsel  for 
the  defendant  thinks  the  jury  and  this  court  erred,  in  inferring 
from  this  testimony,  that  the  slaves  were  in  the  habit  of  running 
away  ;  that  one  single  instance  of  running  away  is  proven  ante 
rior  to  the  sale,  which  cannot  constitute  a  habit.  As  to  Horace's 
trips  to  New  York,  to  Liverpool,  and  Charleston,  and  an  absence 
of  seven  months,  which  ended  by  his  capture  only  ;  the  circum 
stance  of  his  being  sold  as  a  runaway  ;  the  information  given  by 
the  defendant's  vendor,  that  he  was  a  runaway,  justify,  in  our  opi 
nion,  the  conclusion  which  the  jury  and  this  court  have  taken.  As 
to  Boucaud,  the  circumstances  of  his  having  been  purchased  by 
the  defendant,  with  a  simple  warranty  of  the  redhibitory  maladies, 
of  his  having  been  committed  to  jail  as  a  runaway  once,  would 
not  authorize  the  same  conclusion.  But  he  ran  away  twice, 
within  a  very  few  days  after  the  plaintiffs  purchased  him,  which 
raises  a  presumption,  when  coupled  with  the  preceding  facts,  that 
the  habit  of  running  away  existed  before  the  sale.  Indeed,  the 
cases  of  these  slaves  are  not  easily  to  be  distinguished  from  that  of 
Macarty  v.  Bagneries,  1  Martin's  Rep.  149.  There,  there  was  no 
evidence  of  any  repeated  act  of  running  away  before  the  sale,  but 
the  slave  had  been  kept  several  months  in  jail,  and  not  liberated 
therefrom  till  the  sale,  and  ran  away  soon  after.  Thus,  Horace's 
voyages  to  New  York,  Liverpool,  and  Charleston,  and  the  declara 
tion  of  his  then  master,  excite  as  much  apprehension  and  alarm, 
as  evidence  of  three  ordinary  acts  of  running  away.  It  is  there 
fore  ordered,  adjudged,  and  decreed,  that  the  judgment  of  this 
court  in  this  case  be  certified  to  the  parish  court,  as  if  no  rehear 
ing  had  been  granted. 


144  SLAVERY. 

12. 

AXDRY  et  al.   v.  FOY.     June  T.   1819.      6  Martin's  Louisiana 

Rep.  689. 

Although  The  plaintiff's  bought  from  the  defendant  nine  slaves,  for 
$  10,500,  payable  in  their  note  at  one  year.  Six  of  them  having  suc- 
cessively  ran  away,  they  brought  the  present  suit  for  the  recision 


and  for  a  of  the  sale,  alleging,  that  the  slaves  were  addicted  to  running  away, 
price,  the  in  the  knowledge  of  the  defendant,  prior  to  the  sale.  There  was 
Tot6  beWre-  judgment  for  the  recision  of  the  sale  as  to  the  six  slaves  who  ran 
^jndedfor  awa^  and  the  defendan^was  condemned  to  the  payment  of  $6,500. 
immber  Both  parties  appealed. 
the8  whole  Per  Cur.  Martin,  J.  It  is  true,  the  slaves  were  not  sold  sepa- 


rately,  and  for  distinct  prices  ;  and  after  the  sale  the  vendees  re- 
ry  defect.  fuse(j  to  retain  any  of  them,  and  rescind  the  sale  for  the  others  ; 
but  insisted  on  an  entire  compliance  with,  or  an  absolute  recision 
of  the  contract.  These  circumstances  do  not,  however,  appear  to 
us  sufficient  to  authorize  the  vendees  in  demanding  the  recision  of 
the  sale  of  all  the  slaves,  on  account  of  a  redhibitory  defect  in  one 
or  more  of  them.  For  they  did  not  constitute  a  whole,  as  a  company 
of  comedians,  or  a  span  of  horses,  in  which  the  value  of  each  of 
the  component  parts  is  increased  by  its  union  to  the  rest.  It  is 
true,  after  the  sale,  the  vendees  declared  their  willingness  to  annul 
it  in  tcto,  and  refused  to  do  so  partially  ;  a  circumstance,  which  is 
presented  to  us  as  giving  rise  to  the  presumption,  that  they  would 
not  have  agreed  to  the  purchase  of  any  number  of  these  slaves, 
less  than  the  whole.  The  presumption,  however,  appears  to  us  too 
slight  to  be  received  as  evidence.  We  therefore  conclude,  that 
the  parish  court  did  not  err  in  refusing  to  rescind  the  sale  in  toto. 
The  habit  of  running  away  is  a  redhibitory  vice.  Civ.  Code.  358. 
art  79.  A  warranty  against  it  is,  therefore,  of  the  nature  of  the 
contract  of  sale  of  slaves,  i.  e.  it  needs  not  be  expressed  in  the 
deed.  Hence  the  silence  of  the  vendor  in  this  case,  as  to  this 
warranty,  does  not  prevent  him  from  being  bound  thereto.  Neither 
does  it  appear  to  us  that  the  circumstance  of  his  having  disclosed 
to  his  vendees  the  names  of  his  own  vendors,  and  referred,  in  his 
act  of  sale,  to  those  of  the  latter,  in  any  degree  lessens  his  liability. 
This  warranty,  however,  not  being  of  the  essence  of  the  contract, 
may  be  excluded  by  the  agreement  of  the  parties.  But  the  agree- 
ment  must  be  proven,  and  the  exclusion  must  be  a  fair  one;  that 


OF  WARRANTY.  145 

is  to  say,  the  vendor  must  be  ignorant  of,  or  disclose  the  existence 
of  the  vice.  In  the  present  case,  it  is  clear,  that  the  disposition  of 
six  of  these  slaves  to  run  away  was  known  to  the  vendor,  and 
that  he  did  not  communicate  it  to  the  vendees.  The  under 
standing  of  the  parties,  that  the  slaves  should  remain  on  trial 
during  a  fortnight,  with  the  vendees,  at  the  risk  of  the  vendor,  in 
case  they  ran  away,  does  not  enable  us  to  conclude,  that  the  in 
tention  of  the  parties  was,  that  if  after  that  period,  they,  or  any  of 
them  ran  away,  and  the  vendees  could  prove  a  previous  habit  of 
running  away,  they  should  not  avail  themselves  of  the  legal  war 
ranty.  The  existence  of  this  habit  in  the  six  slaves,  of  whom  the 
sale  is  rescinded  by  the  judgment  of  the  parish  court,  clearly  ap 
pears  from  the  evidence  on  the  record,  particularly  the  deposition 
of  the  jailor,  and  the  orders  of  the  mayor. 

The  defendant  was  bound,  at  the  inception  of  the  suit,  to  re 
imburse  the  price  of  these  slaves  ;  but  this  price  was  not  fixed  by 
the  parties,  and  required  to  be  liquidated.  The  parish  court, 
therefore,  erred  in  allowing  interest  from  the  date  of  the  judicial 
demand.  But  no  hire  can  be  allowed.  Both  parties  complain  of 
the  valuation  made  in  the  parish  court,  the  vendor  thinking  it  ex 
travagant,  and  the  vendees  insufficient.  Perhaps  this  is  the  best 
evidence  of  its  correctness.  It  does  not  appear  to  us  so  material 
ly  incorrect  as  to  authorize  our  interference. 

It  is,  therefore,  ordered,  adjudged,  and  decreed,  that  the  judg 
ment  of  the  parish  court  be  annulled,  avoided,  and  reversed  j  and 
this  court,  proceeding  to  render  such  a  judgment  as,  in  its  opi 
nion,  ought  to  have  been  rendered  in  the  parish  court,  it  is  ordered, 
adjudged,  and  decreed,  that  the  sale  of  the  negroes,  Lindor,  Tony, 
Sunday,  Isaac,  Horace  and  Bjucaud,  be  rescinded,  and  made 
null  and  void  ;  and  that  the  plaintiffs  do  recover  from  the  de 
fendant  the  sum  of  six  thousand  five  hundred  dollars,  with  costs, 
in  the  parish  court,  and  that  the  plaintiffs  pay  costs  in  this  court. 

13. 

CHRETIEN  v.  THEARD.    June   T.  1824.   14  Martin's  Louisiana 

Rep.    582. 

Per  Cur.     Porter,  J.     This  is  a  redbibitory  action,  in  which  the  Stealing 
plaintiff  seeks  to  return  a  slave  he  purchased  from  the  defendant,  acc^mpa-^ 
and  get  back  the  price.     The  defect  alleged,  i*,  that  the  slave  is  a  ™ed  with 

force    to 

thief,  and  addicted  to  robbery.     And  it  is  further  charged,  that  the  constitute  a 
vendor  knew  he  had  those  vices,  at  the  time  he  sold  him.    Several  defect,*017 
grounds  of  defence  have  been  presented  in  this  court  against  the 
19 


146  SLAVERY. 

right  of  the  petitioner.     The  second   point  of  the  defendant  is, 
that  the   vice  complained  of,  is  not  a  redhibitory  one ;   that  the 
stealing  must  be  accompanied  with  force,  to  constitute  this  defect. 
'  If  this  construction  be  the  true  one,  it  will  lead  to  the  most  incon 
venient  results,  and  open  the  door  to  great  and  numerous  frat 
This  consideration,  we  are  aware,  is  not  of  much  importance,  if  the 
law  be  clear  and  free  from  ambiguity  ;  but  if  otherwise,  it  is  entitled 
to  much  weight  in  aiding  our  conclusions  as  to  the  purport  and 
true  meaning  of  the  statute.    The  words  of  the  law  in  the  French 
text,  are  "  si  1'esclave  est  adonne  au  vol ;"  in  the  English  "  if  he  is 
addicted  to  robbery."      Vol  is  the   generic  term,  in  the   French 
language,  for  theft  of  every  kind,  and,  it  is   admitted,  embraces 
larceny.     Robbery,  it  is  said,  means  the   offence  known  to  our 
criminal  law,  as  such.     And  it  is  urged,  that  the  English  version 
shows,  that  the  word  vol  in  the  French  was  used  in  the  restricted 
sense  of  taking  the  property  of  another  by  force.     Our  code  was 
passed  previous  to  the  enactment  of  the  constitution,  and  the  legis 
lature  in  adopting  it,  directed  that  the  French  and  English  texts  must 
be  taken  together  ;  and  that  they  should  mutually  serve  for  the  in 
terpretation   of  each   other.     2   Martin's   Dig.    98.     Whenever, 
therefore,  the  expressions  can  be  reconciled,  and  made  to  harmo 
nise  with  each  other,  it  is  the  duty  of  those  on  whom  the  task  of 
construing  them  is  devolved,  to  do  so.     When  they  cannot,  such 
a  construction  must  be  adopted  as  does  violence  to  neither,  and 
gives  effect  to  both.     Thus,  if  the  French  part  of  the  law  made 
epilepsy  alone  a  redhibitory  defect,  and  the  English  had  provided 
only  for  leprosy,  we  should  hold,  that  both  these  diseases  constitu 
ted  vices  for  which  the  sale  could  be  annulled  ;  because  both  were 
provided  for  ;  and  because  at  that  time  the  legislative  will  expressed 
in  either  language,  became  a  law.     In  the  case  of  Touro  v.  Gush 
ing,  decided  at  the  last  July  term,  this  principle  was  applied  to  the 
122d  article  of  the  code,  369.     The  text  there  presented  two  dis 
tinct  ideas  to  the  mind,  and  we  thought  a  compliance  with  either, 
sufficient  on  the  part  of  him  who  claimed  the  benefit  of  the  law  ; 
otherwise,  as  was  there  said,  the  statute  in  relation  to  that  provision, 
would  be   a  decoy,  instead  of  a  beacon.     And   where  they  are  not 
entirely  different,  as  in  the  case  before  us,  where  the  word  in  one 
text  includes  the  meaning  used  in  the  other,  and  means  something 
more,  we  must,  on  the   same  principle,  take  that  which  presents 
the  most  enlarged  sense,  because,  in  doing  so,  we  give  full  effect 
to  both  clauses. 


OF  WARRANTY.  147 


(C.)  OF    THE    WARRANTY    OF    CAPACITY. 
I. 

STRAWBRIDGE  v.  WARFIELD.     April    T.    1832.     4   Louisiana 

Rep*  20. 

Per  Cur.     Porter,  J.     The  question  is,  whether  warranty  on  the 
part  of  the  owner  of  the  property  sold  (slaves)  be  of  the  essence  Warranty 

is    not  the 

of  the  contract  of  sale ;  and  this  question  the  law  requires  us  to  essence  of 
answer  in  the  negative.  Warranty  is  in  the  nature  of  the  contract 
of  sale.  That  is,  the  law,  implies  it,  if  a  contrary  agreement  be 
not  made.  But  it  is  not  essential  to  such  a  contract.  The 
vendor  may  stipulate,  he  will  not  warrant  at  all ;  or  he  may 
covenant  that  his  warranty  shall  be  restricted  ;  or  he  may  contract 
that  his  vendee  shall  accept  the  warranty  of  a  third  person.* 

2. 

PILIE  v.  LALANDE  et  al.     April  T.  1829.     19  Martin's  Loui 
siana  Rep.  648. 

Porter,  J.,  delivered  the  opinion  of  the  court.     This  is  an  action  Jj  *  red^- 
of  redhibition.     The  defendant  pleaded  the  general  issue.     The  tion  the 
slave  was   sold  as  a  washer,  ironer,  and  cook.     The   evidence  may  prove 
shows,  that  she   possessed  these   qualities,  very  defectively,  if  at  ^Ifway 
all.     The  jury  found  a  verdict  for  the  plaintiff,  reducing  the  price  after  he 
$170.     The  defendants  have  appealed,  and   the  plaintiff  has  re-  chased. 
quired  that  the  judgment  be  amended  by  the  court  decreeing  a  reci- 
sion  of  the  sale.     The  evidence  is  contradictory,  and  does  not  au 
thorize  us  to  disturb  the  verdict.     The  only  questions  which  re 
quire  our  particular  attention  are  those  presented  by  the  two  bills 
of  exceptions,  taken  on  the  trial  by  the  defendants.     The  plaintiff 
offered  evidence  to  prove  that  the  slave  had  run  away  after  he  had 
purchased  her,  and  the  court  admitted  it.     We  think  there  was 
no  error  in  doing  so.     The  proof  in  itself  would  not  be  sufficient 
to  establish  the  fact,  without  showing  that  the  slave  had  run  away 


*  An  express  warranty  does  not  guard  against  that  which  can  be  discovered  by 
flight;  as  if  a  horse  be  warranted  perfect,  and  he  wants  an  ear  or  a  tail,  Butterfield  v. 
Burroughs,  Salk.  Rep.  211.  But  an  express  warranty  extends  to  every  kind  of  sound 
ness  known  and  unknown  to  the  seller.  15  Petersdorff's  Abr.  374. 

Upon  the  sale  of  a  ship  advertised  as  copper  fastened,  with  all  faults,  the  court  held, 
that  these  faults  meant,  faults  of  a  ship,  which  might  have  been  consistent  with  that 
description  of  vessel ;  and  that  not  being  a  copper-fastened  ship  at  all  it  was  a  breach 
of  the  warranty.  Shepard  v.  King,  3,  B.  &  A.  240. 


148  SLAVERY. 

while  in  the  possession  of  the  vendor.  But  if  the  facts  in  regard 
to  the  absence  of  the  slave  antecedent  to  the  sale  were  in  any 
way  equivocal,  subsequent  acts  might  aid  in  ascertaining  their  true 
character.  The  evidence,  too,  might  be  important,  in  showing  a 
continuance  of  the  habit  which  existed  at  the  time  of  the  sale.  It 
has  been  the  constant  practice  in  actions  of  this  kind,  to  admit  such 
proofs.  7  Martin's  Rep.  43.  ;  10  Ibid.  659.  Judgment  affirmed. 


(D.)  OF  THE  WARRANTY  OF  TITLE.* 
I. 

COWAND   et   al.  v.  REYNOLDS.    Feb.    T.    1832.      3  Louisiana 

Rep.  378. 

Liability  of      Guaranty  of  the  title  of  a  mulatto  boy  purchased  by  the  plain- 
surety,    on    .„.        T     r    •  'iii 
warranty  of  "fls.     It  being  ascertained  the  boy  was  .free,  the  present  action 

was  brought,  to  recover  the  amount  of  expenses  incurred  by  the 
plaintiffs  while  the  boy  was  in  their  possession. 

The  Court.   Mathews,  J.     The  surety  of  the  vendor  of  a  slave 
who  warrants  only  the  title,  is  not  liable  for  expenses  to  which  the 
vendee  is  put  in  consequence  of  the  slave  being  affected  with  the 
redhibitory  vice  of  running  away ;  but  he  is  responsible  for  dama 
ges  incurred  in  case  of  eviction. 

*  It  was  held,  in  Mackbee  v.  Gardner,  2  Har.  &  Gill's  Rep.  176  ,  that  it  was  a 
familiar  principle,   that  there  exists,  in  every  sale  of  personal  property  an  implied 
warranty  of  title.     And  the  same  principle  was  recognized  in  Chism  v.  Woods, 
Hard.  Rep.  531. ;  Osgood  v.  Lewis,  2  Har.  &  Gill's  Rep.  495.     In  Defresne  v. 
Trumper  1  Johns.  Rep.  274,  it  appeared  the  defendant  sold  the  plaintiff  a  horse, 
which  was  recovered  of  the  plaintiff  by  a  third  person.     The  defendant  contended 
the  plaintiff  could  not  recover,  as  there  was  no  warranty,  or  fraud  in  the  sale.     But 
the  court  said,  we  are  of  opinion  that  an  express  warranty  is  not  requisite  ;  for  it  is 
a  general  rule,  that  the  law  will  imply  a  warranty  of  title  on  the  sale  of  a  chattel. 
The  rule  is  laid  down  in  2  Black.  Com.  451.,  that  by  the  civil  law,  an  implied  war 
ranty  was  annexed  to  every  sale,  in  respect  to  the  title  of  the  vendor ;    and  so  too,  in 
our  law,  a  purchaser  of  goods  and  chattels  may  have  satisfaction  of  the  seller,  if  he 
sells  them  as  his  own,  and  the  title  proves  deficient  without  any  express  warranty  for 
the  purpose. 

And  the  same  rule  prevails  in  Great  Britian.  In  contracts  for  the  sale  of  personal 
property,  the  vendor  impliedly  warrants  his  title  to  the  article  he  sells ;  and  if  he 
has  no  title,  he  is  liable  for  a  breach  of  this  implied  promise.  15  Petersdoff  'a  Abr.  372. 
And  the  rule  applies  whether  the  seller  is  in  possession  of  the  tiling  sold  or  not, 
Ibid. ;  3  T.  R.  15. ;  Rew  v.  Barber,  3  Cowen's  Rep.  272.  The  Oueida  Manufactu 
ring  Society  v.  Lawrence,  4  Cowen's  Rep.  440. 


OF  WARRANTY.  149 

2. 
STRAWBRIDGE   v.   WARFIELD.  April   T.   1832.      4   Louisiana 

Rep.  20. 

Per  Cur.  Porter,  J.  The  question  is,  whether  the  fact  of  the  ofasaleby 
vendor  of  the  slave  having  concealed  from  the  purchaser,  no  mat-  a  broker. 
ter  with  what  intention,  the  fact  of  hio  being  the  real  owner, 
makes  him  responsible  in  warranty  1  We  think  not.  It  is  clear, 
that  the  plaintiff  could  not  now  have  the  contract  avoided  on  the 
ground  that  the  defendant  was  acting  merely  as  a  broker,  and  was 
not  the  owner,  as  plaintiif  supposed.  For  error  in  person  with 
whom  he  contracted  could  not  enable  him  to  do  so  ;  the  conside 
ration  of  the  person  not  being  the  principal  cause  of  the  contract. 
If  the  plaintiff  could  not  have  the  contract  set  aside,  we  can  dis 
cover  no  legal  grounds  on  which  it  can  be  changed,  and  a  subsidu- 
ary  warranty  granted  to  the  buyer,  for  which  he  did  not  contract. 

3. 

SCOTT  et  al.  v.  SCOTT'S  ADM'R.     Spring  T.  1820.  2  Marshall's 
Rep.  217.  ;  S.  P.  REW  v.  BARBER,  3  Cowen's  Rep.  272. 

The  declaration  alleged,  that  the  defendant's  intestate  sold  to  On  the  sale 
the  plaintiff  a  slave,  and  that  he  undertook  and  promised  that  he 
had  a  good  title  and  lawful  right  to  sell  ;  and  avers  that  he  had  no 
title  or  right  to  sell,  but  that  the  title  was  in  one  Robertson.     Plea,  without 

.       .  warranty, 

the  statute  of  limitations.  no  recove- 

It  appeared  the  slave  was  sold  to  the  plaintiffs  more  than  five  Jhi^per- 
years  before  the  commencement  of  the  action,  but  that  within  five  sonis  ne~ 

cessary    to 

years  Robertson  had  recovered  the  slave  of  the  plaintiff.  give  the 

The  circuit  court  instructed  the  jury,  that  if  the  defendant's  in- 


testate  had  no  title  to  the  slave  when  he   suld  him  to  the  plaintiffs, 
the  statute  of  limitations  began  to  run  from  the  time  of  the  sale  originates 
and  delivery.     But  the  jury  found  for  the  plaintiffs  ;  and  the  court  deceit  of 
granted  a  new   trial,  and  the  plaintiffs  excepted.     On  the  second  the  £ 
trial  the  jury  found  for  the  defendant,  and  the  plaintiffs  brought 
error  to  this  court. 

Per  Cur.  The  Chief  Justice.  It  is  certainly  true,  that  the 
statute  could  not  have  begun  to  run  until  the  cause  of  action  ac 
crued  ;  and  if,  as  was  contended  on  the  part  of  the  plaintiffs,  a 
recovery  under  an  adverse  title  was  essential  to  give  them  a  right 
of  action,  it  would  follow,  as  a  necessary  consequence,  that  the 
instruction  given  by  the  court  to  the  jury  was  erroneous.  But  it 
cannot  be  admitted  that  the  recovery  was  necessary  to  the  plain- 


150  SLAVERY. 

tiffs'  right  of  action.  In  the  case  of  Payne  v.  Hodden,  4  Bibb's 
Rep.  304.,  it  was  held  by  this  court,  that  the  declaration  against 
the  vendor  of  a  chattel  upon  his  implied  undertaking  that  he  had 
title,  was  sufficient  without  an  averment  of  a  recovery  by  the  right 
owner. 

We  are  of  opinion,  that  the  plaintiffs'  cause  of  action  accrued  on 
the  sale  and  delivery  of  the  slave,  and  that  the  circuit  court  cor 
rectly  instructed  the  jury,  that  the  statute  of  limitationsbegan  to 
run  from  that  time.  Judgment  affirmed. 

4. 

MOCKBEC'S  ADM'R.  v.  GARDNER  et  al.    June  T.  1828.    2  Har. 
&  Gill's  Rep.  176. 

There  ex-       Trover  for  a  slave.     The  plaintiff  offered  to  prove  by  one  Du- 

iy  sSeeVof  vail,  that  the  plaintiff's  intestate  purchased  of  the  witness,  as  the 

prop°ert}      administrator  of  William  Warfield,  the  negro,  and  that  at  the  time 

an  implied  of  the  death  of  the  intestate,  was  his  property,  and  at  the  time  of 

tide— "he0   the  sale  was  part  of  the  assets  of  the  said  intestate.     The  defend- 

^re  trustees  ant  objected,  that  the  witness  was  incompetent  to  prove  that  the 

J^execu~  negro  at  the  time  of  the  death  of  Warfield,  was  his  property  and  at 

the  time  of  sale  was  part  of  the  assets  of  the  intestate's  estate. 

The  objection  was  sustained  by  the  court.    Dorsey,  Ch.  J.     And 

the  plaintiff  excepted. 

Per  Cur.  Archer,  J.  It  is  a  general  and  familiar  principle, 
that  there  exists  in  every  sale  of  personal  property  an  implied 
warranty  of  title,  and  that  the  vendor  cannot  be  a  witness  to  sus 
tain  the  title  of  the  vendee.  But  here  the  witness  was  a  mere 
trustee ;  and  in  that  capacity  sold  the  property.  Executors,  admin 
istrators,  and  other  trustees,  arc  exceptions  to  the  rule;  and  a  sale 
by  them  does  not  imply  a  warranty  of  title,  unless  there  be  fraud 
or  an  express  warranty  and  eviction,  Judgment  reversed. 

5. 

FORSYTH  v.  ELLIS.  July  T.  1830.  4  J.  J.  Marshall's  Rep. 
298.;  M'GEE  v.  ELLIS  &  BROWNING,  4  Little's  Rep.  244. ; 
PEPPER  v.  THORNTON,  6  Monroe's  Rep.  27. ;  HEAD  v. 
M'DONALD,  7  Monroe's  Rep.  206. 

Or  per-  M'Gee  obtained  judgment  against  Browning,  and  delivered  a  fi. 

public aia^    fa-  to  Forsyth  for  levy,  which  was  executed  upon  two  negroes  in 

Sent  the  possession  of  Browning,  and  sold  them  to  Ellis,  he  being  the 

highest  bidder.  Browning  sued  Ellis  in  detinue,  and  recovered  the 


OF  WARRANTY.  151 

negroes.  Ellis,  not  having  paid  off  the  sale  bond,  filed  a  bill 
to  enjoin  the  payment,  and  the  circuit  court  perpetuated  the  in 
junction.  The  court  of  appeals  reversed  the  decree,  and  suggested 
that  either  Browning  or  the  sheriff  was  liable  ,  but  that  M'Gee, 
notwitstanding  the  foregoing  facts,  was  entitled  to  the  amount  for 
which  the  negro  sold.  Ellis  then  sued  Forsyth,  and  recovered 
judgment  for  the  price  of  the  negro,  and  the  sheriff  brought  this 
writ  of  error. 

Per  Cur.  Robertson,  Ch.  J.  The  question  is,  whether  the  sheriff 
is  responsible  to  the  purchaser  for  any  defect  of  title.  When, 
an  individual  sells  personal  property  as  his  own,  the  law  implies  a 
warranty  of  title.  But  this  rule  does  not  apply  to  sales  by  an  agent, 
whether  he  be  a  public  or  private  agent.  He  does  not  sell  the 
property  as  his  own,  and,  generally,  can  be  made  responsible  only 
for  actual  frand,  or  gross  negligence.  In  sales  under  execution, 
it  seems  to  us,  that  it  cannot  be,  nor  has  ever  been  understood, 
that  the  officer,  either  personally  or  officially,  guarrantees  the  title. 
And  the  fact,  that  no  case  is  reported  in  which  the  sheriff  was  ever 
sued  for  an  implied  warranty,  ought  to  have  persuasive,  if  not  de. 
cisive  influence. 

6. 
KETTLETAS   v.   FLEET.   Feb.    T.    1811.    7  John's.  Rep.  324. 

The  owner  of  a  slave  gave  a  written  promise  to  manumit  him  in  Selling  a 
8  years,  and  delivered  it  to  a  third  person.     The   court  held,  that  kuely,a 
where  the  master  sold  the  slave  absolutely  for  his  full  value,  after  ftJurethne 
giving  such  a  written  covenant  to  a  third  person,  and  did  not  state  entitled  to 
to  him  the  fact  of  there  being  a  written  covenant,   and  the  vendee  a  violation8 
being  ignorant  of  its  existence,  the  concealment  was  a  fraud,  and  JfiJa*^ 

vacated  the  contract.  ran<y  of  ti 

tle. 

7. 
CROMWELL  v.  CLAY.     Fall  T.  1833.     1  Dana's  Rep.  578. 

Cromwell   sued  Clay  in  detinue,  for  a  slave   which  one   Orear  The  pur- 
sold  to  Cromwell  at  a  time  when  Piper  and  Waugh  had  suits  sk^whHe 
against  Orear,  for  the  purpose  of  subjecting  the  slaves  to  the  pay-  a  su£  is 
ment  of  his  debts.     Clay  took  the  slaves  into  his  possession  as  subject  it  to 
deputy  sheriff,  on  an  order  by  the  chancellor.     And  the  question  dorWebtn, 


was,  whether  the   deed  of  a   purchaser  pendentc  lite  is  void    or  J 

VOidable.  dent  on  the 

event  ofthe 
suit. 


152  SLAVERY. 

Per  Cur.  Underwood,  J.  The  bill  of  sale  from  Orear  to  Crom 
well  was  not  absolutely  void,  as  the  circuit  court  supposed.  As 
the  chancery  suits  had  not  yet  been  decided,  it  could  not  be  af- 
.  firmed  that  the  complainants  would  certainly  obtain  decrees  sub 
jecting  the  slave  to  the  payment  of  their  demands.  If  the  bills 
shall  be  dismissed,  tehn  the  bill  of  sale  is  unquestionably  good. 
Nor  does  it  lose  its  efficacy  until  the  decree  is  pronounced  in  favor 
of  the  complainants.  In  the  mean  time,  the  title  of  the  slave  will 
vest  under  it  in  Cromwell. 

If  a  decree  is  rendered  subjecting  the  slave  to  the  payment  of 
Orear's  debts,  such  decree  will  avoid  the  bill  of  sale,  to  the  extent 
of  the  debts.  If  a  surplus  is  left  on  the  sale  of  a  slave,  after  pay 
ing  the  debts,  such  surplus  might  be  claimed  by  Cromwell.  The 
bill  of  sale  is  liable  to  be  avoided  by  the  decree,  but  it  is  not  void. 
If  the  suit  had  been  against  Orear,  the  result  would  have  been  dif 
ferent.  He  could  not  protect  himself  by  averring  the  pendency  of 
a  suit  against  him  for  the  slave.  Here  the  possession  of  the  sheriff 
is  under  the  authority  of  law,  and  the  owner,  having  been  devested 
of  the  possession,  by  an  order  of  the  chancellor,  cannot  reclaim  it 
but  by  leave  of  the  court. 


(VIII.)   HIRING  OF  SLAVES.* 

1. 

GEORGE  v.  ELLIOTT,  December  1806.    2  Hen.  &  Munf.  Rep.  6. 

If  a  slave  Elliott  sued  George  on  his  bond  for  the  hire  of  a  negro  slave  for 
the*1  ear  one  year>and  recovered  judgment.  George  filed  a  bill,  and  obtained 
become  an  injunction,  alleging,  that  the  slave  in  a  few  davs  after  the  hiring 

sick,     or  J  .    , 

runs  away,  became  sick,  and  soon  alter  died. 

the  hirer 
must  pay 
the  hire  ; 

*  Slaves  are  considered  personal  property,  and  subject  to  the  rules  and  regulations  of 
if  the  slave  tne  nse  anc*  possession,  and  also  the  sale  and  transfer  of  this  kind  of  property.  The  owner 
die  without  can,  of  course,  sell,  mortgage,  or  hire  out  the  property  as  he  pleases,  subject  only  to 
those  rules  which  society  has  established  for  the  regulation  and  government  of  personal 
for  in  sucli  estate.  But  however  unlimited  the  owner  may  be  in  the  use  of  the  thing,  the  slave 
case  the  himself  cannot  hire  himself  out  in  any  of  the  states.  The  statutes  of  the  states  contain 
owner  ft  prohjDitjon>  wjth  a  penalty  against  the  slave  going  at  large,  or  hiring  himself  out.  By 

the*  hire  the  digest  of  the  laws  of  Alabama,  1836.  p.  393.  $  14.  it  is  declared,  that  if  any  per- 
from  the  son  shall  permit  his  or  her  slave  to  go  at  large,  or  hire  him  or  herself  out,  every  per- 
death.  gon  or  persons  so  offending  shall  forfeit  and  pay  $50 ;  and  the  slave  may  be  commit 

ted,  and  the  owner  prosecuted.    And,  by  the  Rev.  Code  of  Virginia,  vol.  1.  p.  442., 


HIRING  OF  SLAVES.  153 

Per  Cur.  The  only  question  in  the  case  is,  whether  the  plain 
tiff  should  be  allowed  a  credit  on  his  bond  from  the  time  of  the 
negro's  death  to  the  end  of  the  year,  for  so  much  as  the  hire  for 
that  time  would  amount  to.  The  court  understands  the  rule  to  be, 
where  one  hires  a  slave  for  a  year,  that  if  the  slave  be  sick,  or 
run  away,  the  tenant  must  pay  the  hire  ;  but  if  the  slave  die  with 
out  any  fault  in  the  tenant,  the  owner,  and  not  the  tenant,  should 
lose  the  hire  from  the  death  of  the  slave,  unless  otherwise  agreed 
upon.  By  pursuing  this  rule,  the  act  of  God  falls  on  the  owner, 
on  whom  it  must  have  fallen  if  the  slave  had  not  been  hired  ; 
from  which  time  it  would  be  unreasonable  to  allow  the  owner  hire. 
Hire  !  for  what  1  for  a  dead  negro  !  It  would  be  rigid  enough  in 
the  case  of  a  special  agreement  ;  but  where  there  is  no  such  special 
agreement,  to  insist  upon  the  hire  appears  to  this  court  unjust  in 
the  extreme.  See  1  Ruth.  Inst.  250,  251  ;  1  Fonbl.  Eq.  376.  ; 
Powell  on  Contracts,  446. 

2. 

YOUNG  v.  BRUCE  et  al.     Spring  T.  1824.    5  Little's  Rep.  324.  ; 
S.  P.  HARRIS  v.  NICHOLAS,  5  Munf.  Rep.  483. 

Covenant  upon  the  following  instrument  :  Mrerrofha 

On  or  before  the  25th  of  December,  1819,  we  promise  to  pay  slave  cove- 

Aaron  H.  Young  $120,  for  the  hire  of  a  negro  man  named  Dick,  return  him 

from  this  time  till  the  25th  of  December,  1819,  to  be  returned  well  o 


clothed  at  the  time.     As  witness  our  hands  and  seals  this  29th  of  he  is  _dis- 

charged 

December,  1818.  from  the 

JOHN  &  HORATIO  BRUCE. 

The  declaration  averred,  that  the  defendants  had  not  paid  the 
money,  or  returned  the  slave.  The  defendants  pleaded,  that  by 
inevitable  accident  the  slave  Dick  was  drowned  in  the  Ohio  river, 
whereby  they  were  prevented  from  returning  the  said  slave  on  the 
day,  &c.  To  this  plea  the  plaintiff  demurred.  The  court  gave 
judgment  overruling  the  demurrer. 

§  81,  it  is  declared,  that  a  slave  going  at  large,  or  hiring  himself  out,  may  be  commit 
ted  by  a  magistrate,  and  may  fine  the  owner,  or  may  order  the  slave  to  be  sold.  And 
also  by  the  Rev.  Code  of  Mississippi,  374.  §  25,  26.,  the  owner  is  prohibited  from 
licensing  his  slave  to  go  at  large  and  trade  as  a  freeman,  or  hiring  himself  out.  Pro 
vision  is  made  whereby  the  slave  may  be  seized,  the  owner  fined,  and$  in  certain 
cases,  the  slave  may  be  sold.  And  by  §  20.  any  citizen  may  seize  a  slave  offering  ar 
ticles  for  sale,  and  take  him  before  a  justice  of  the  peace,  and  the  justice  shall  order 
the  slave  to  be  whipped,  and  forfeit  the  article  to  the  person  apprehending  the  slave. 
Similar  provisions  are  to  be  found  in  the  statute  books  of  those  states  where  this 
species  of  property  is  recognized. 

20 


154  SLAVERY. 

Per  Cur.  Owsley,  J.  We  do  not  construe  the  instrument  to 
insure  a  return  of  the  slave  in  case  of  his  death.  It  was  no  doubt 
competent  for  the  parties  to  contract  upon^terms  most  acceptable 
to  themselves,  and  it  is  incumbent  upon  the  court,  to  effectuate  the 
contract  according  to  what  may  be  their  supposed  intention  ;  but 
it  is  not  inferrable  from  any  thing  contained  in  the  writing  upon 
which  the  action  is  founded,  that  the  contracting  parties  intended 
to  insure  a  return  of  the  slave  in  case  of  his  death.  The  writing 
contains  no  express  stipulation  to  that  effect,  and  there  is  not  such 
an  inadequacy  between  what  may  be  supposed  the  value  of  a 
year's  service  of  the  slave,  and  the  price  agreed  to  be  paid  by  the 
Bruces,  as  to  afford  any  rational  inducement  from  them,  in  addition 
to  the  hire  which  they  were  to  pay,  to  insure  the  life  of  the  slave. 

3. 

KEAS  v.  YEWELL.  Fall  T.  1834.    2  Dana's  Rep.  348.  S.  P.  SIN 
GLETON  v.  CARROLL,  6  J.  J.  Marshall's  Rep.  528. 

Ye  well  filed  a  bill  against  Keas  to  foreclose  a  mortgage  on  two 
by  a  bond  slaves,  and  upon  an  order  of  the  court,  Keas  gave  bond  to  have 
tureth<ofnia  ^e  s^aves  forthcoming  to  answer  the  decree.  Upon  the  final  de- 
covenant  cree,  one  of  the  slaves  not  being  forthcoming,  according  to  the 
the  slave  bond,  Ye  well  sued  Keas  and  his  sureties  on  the  bond.  The  defend- 
dition  o?na  ants  pleaded  that  the  slave  ran  away  between  the  execution  of  the 

decree,  and  bon(j  an(j  t^e  rendition  of  the  decree,  and  that  they  could  not  re- 
he    runs  ,  J 
away.          claim  her.     Verdict  and  judgment  for  plaintiff,  and  the  defendants 

brought  error. 

Per  Cur.  Nicholas,  J.  In  our  estimation,  the  plea  constitutes 
a  valid  defence  to  the  action.  The  casualty  by  which  the  slave 
was  lost  is  a  peril  incident  to  the  very  nature  of  such  property  ; 
and  therefore  in  contracts  and  covenants  concerning  such  property, 
that  peril  should  never  be  presumed  to  have  been  intended  to  be 
guarded  against,  unless  so  expressly  stipulated.  It  has  according 
ly  been  held  by  the  court  of  appeals  in  Virginia,  and  by  this  court, 
that  the  hirer  of  a  slave  was  excused,  by  the  fact  of  the  slave  hav 
ing  run  away  without  his  fault,  from  his  covenant  to  return  the 
slave  at  the  end  of  the  year.  In  Singleton  v.  Carroll,  the  cove 
nant  of  the  hirer  was  as  express,  unambiguous,  and  unconditional, 
as  that  of  the  parties  here.  The  same  principle  which  exempted 
the  hirer  from  responsibility  there,  must  relieve  the  obligors  in  this 
bond  also.  The  principle  is  laid  down  in  that  case,  that  the  loss  is 
not  to  be  considered  as  provided  against  by  a  general  covenant, 


HIRING  OF  SLAVES.  155 

and  its  happening  therefore  presents  the  same  excuse  for  non- 
performance,  that  the  death  of  the  slave  would  have  done.  We 
therefore  think  the  court  erred  in  sustaining  the  demurrer  to  this 

plea. 

4. 

WILLIAMS  v.  HOLCOMBE.  Jan.  T.  1814.    1  North  Carolina  Law 
Repository,  365. 

The  defendant  hired  of  plaintiff,  a  negro  boy  about  16  years  of  where 
age,  who  was  consumed  by  fire  in  the  defendant's  still  house,  with  Sst8la^th- 
its  contents,  which  were  valuable,  the  defendant  with  some  diffi-  °ut,  th_e , 

fault  of  the 

culty  escaping.  hirer. 

The  judge  informed  the  jury,  that  if  the  time  of  hiring  was  not 
expired,  the  defendant  was  not  bound,  if  he  used  ordinary  care  and 
attention,  such  as  a  prudent  man  would  afford  to  his  own  property. 
On  returning  the  verdict,  the  jury  said,  that  they  were  of  opinion, 
that  the  time  of  hiring  had  not  expired,  and  gave  the  plaintiff  three 
months  hiring,  at  the  rate  of  four  dollars  per  month,  making  six 
pounds. 

Per  Cur.  Seawell,  J.  The  declaration  in  this  case  contains  two 
counts  :  one  to  recover  the  value  of  the  slave,  the  other  to  recover 
the  hire. 

As  to  the  first,  the  jury  found  that  the  time  of  hiring  was  not 
expired  when  the  accident  befel  the  slave,  and  that  the  accident 
was  not  owing  to  the  negligence  of  the  defendant. 

As  to  the  other  count,  the  jury  found  for  the  plaintiff,  and  asses 
sed  damages  to  six  pounds.  From  the  evidence  on  the  trial,  the 
plaintiff  (if  entitled  at  all  on  that  count)  was  entitled  to  about 
twelve  pounds.  The  defendant's  counsel  offered  to  increase  the 
damages  to  that  amount.  As  to  the  motion  for  a  new  trial,  we  are 
all  of  opinion,  that  the  whole  circumstances  of  the  case  were  pro 
perly  left  to  the  jury,  respecting  the  expiration  of  the  time ;  and 
that  the  right  of  the  plaintiff,  in  law,  to  recover,  depending  upon 
that  fact,  which  the  jury  have  found  against  him  ;  that  in  a  case 
of  doubtful  evidence  the  court  should  not  disturb  the  verdict. 

5. 

HARRISON  v.  MURRELL.  Spring  T.  1827.  5' Monroe's  Rep.  359. ; 

S.  P.  REDDING  v.  HALL,  1  Bibb's  Rep.  536. 
Harrison  hired  of  Murrel  two  slaves  for  one  year,  for  $160,  and  Contra  to 

.     ,  case  No.  1. 

covenanted  to  pay  the  amount  at  a  specified  time.     The  negroes  Covenant 
had  been  in  his  possession  but  a  month  when  one  of  them  died.  [L^re^f 


156  SLAVERY. 


tne  ^me  °^  payment,  Murrel  sued  on  the  covenant,  and  re 
time  is  obli-  covered  the  full  amount  of  the  hire.  Harrison  filed  a  bill,  and  ob- 
wliere  the  tained  an  injunction  against  the  judgment  ;  but  the  circuit  court 
before  ife  was  °^  °Pmi°n  no  deduction  ought  to  be  made,  and  dissolved  the 
^me-  injunction  ;  and  dismissed  the  bill. 

Per  Cur.  Owsley,  J.  The  principle  is  not  perceived  upon  which 
Harrison  can  be  relieved  from  any  part  of  the  hire  which  he  cove 
nanted  to  pay  for  the  negroes.  Though  it  may,  at  first  blush, 
seem  hard  that  Harrison  should  be  compelled  to  pay  hire  for  the 
negro  that  died  before  the  expiration  of  the  term  for  which  he  was 
hired,  it  will,  upon  mature  reflection,  be  found  not  to  be  unjust  in 
Murrell  to  exact  the  full  hire  of  the  negro.  The  uncertainty  of 
the  negro's  life  was  equally  known  to  both  Harrison  and  Murrell 
when  the  contract  for  hire  was  entered  into  between  them.  With 
that  knowledge  it  was  competent  for  them  to  contract  in  the  way 
most  acceptable  to  themselves,  and  when  fairly  made,  the  court 
possesses  no  power  to  alter  or  change  the  import  of  the  contract. 

6. 

GRUNDY'S  HEIRS  v.  JACKSON'S  HEIRS.      Spring  T.  1822. 
1  Little's  Rep.  11. 

And  the  The  court  held,  that  the  hirer  of  slaves  is  chargeable  with  phy- 
chargeable  sician's  fees,  and  the  expenses  of  their  sickness,  unless  there  is  an 
Whthsichm's  exPress  agreement  to  the  contrary,  between  him  and  the  owner. 

bill81' 

7. 

BAIRD  v.  BLAND  et  al.    March    T.    1817.     5  Munf.   Rep.   492. 


And  he  is  ^^e  court  ne^,  that  when  a  person  who  bought  a  slave  with 
liable  for  knowledge  of  a  better  title,  and  is  decreed  to  deliver  him  up  and 
est  on  the  pay  the  profits,  interest  ought  to  be  charged  against  him  upon  the 
-  nires  actually  received  by  him  from  other  persons  from  the  date  of 


ses  with  le-  the  receipts,  but  not  upon  the  profits  of  such  slave  while  in  his  pos- 

gal    notice  .  . 

of  a  better  session   without   being  hired  ;    the  same  being  unliquidated,   and 
merely  conjectural  sums,  which  he  was  in  no  default  in  not  paying. 

8. 
REDDING  v.  HALL  et  al.  Fall  T.  1809.   1  Bibb's  Rep.  537. 

^"titled  "to       Held  b>'  the  Court»  Boyle,  J,  that  the  hirer  of  a  slave  is  not  en- 

abatement    titled  to  abatement  of  hire  for  sickness,  or  for  the  physician's  bills, 
for  sickness. 

unless  there  is  a  stipulation  in  the  contract,  and  he  is  bound  to  pay 


HIRING  OF  SLAVES.  157 

a  proper  attention  to  the  health  of  the  slave,  or  he  will  be  respon 
sible  to  the  owner.     See  Pollard  v.  Shaffer,  1  Dall.  Rep.  210. 

9. 
MIMS  v.  MIMS.     Fall  T.  1829.     3  J.  J.  Marshall's  Rep.   389. 

Held  by  the  court,  Underwood,  J.,  that  the  bailee  of  slaves  is  only  Limitation 
liable  for  five  years'  hire  anterior  to  the  suit ;  but  where  slaves  are  of  hire- 
mortgaged,  or  pledged,  hire   must  be  accounted  for  from  date  of 
mortgage  or  pledge,  until  debt  and  interest  are  discharged  ;  then 
hire  ceases  till  within  five  years  before  suit. 

10. 
GRIGSBY  v.  CLEARY.  Oct.  T.  1827.     5  Monroe's  Rep.  514. 

Grigsby,  the  testator,  devised  slaves  to  his  wife  and  his  sons  Where  ten- 
Enoch,  Mack,  and  Smith,  during  their  lives,  remainder  over  to  ™l  j^™0 
others.     Cleary,  the  plaintiff,  hired  Malinda  of  Enoch,  the  tenant  dies  after 
for  life,  for  one  year.     Enoch  died  before  the  end  of  the  year,  his  lessee 
and  Grigsby,  the  remainderman,  took  the  slave  ;  for  which  this  ac-  JJJ^  hf0lf 
tion  of  tresspass  was  brought.     Verdict  for  plaintiff.  theremain- 

Per  Cur.  Bibb,  Ch.  J.  If  the  tenant  for  life  had  hired  Malin- 
da  to  Cleary  for  one  year  unexpired  at  the  death  of  the  tenant  for 
life,  as  that  event  happened  after  the  first  day  of  March,  the  lessee  fh32'd  And 
Cleary  had  a  right  to  hold  the  slave  against  the  remainderman,  ations  of 
until  the  last  day  of  D3cember,  according  to  the  47th  §  of  the  act  for 
concerning  executors  and  administrators.  1  Dig.  532.  And  as  the  Ohfe 
fact  of  hiring  by  the  tenant  for  life  was  in  issue,  parol  evidence  terest.  in 
of  the  declarations  of  the  tenant  for  life,  of  his  having  hired  the 
slave,  is  competent  evidence  against  the  remainderman.  As  an 
example  to  illustrate  the  rule  put,  the  case  of  a  similar  question  clairas  of 

r       •  j  .  those    in 

ot  evidence  between  one  in  possession  under  a  tenant  in  fee  of  a  remainder, 
slave,  claiming  by  hire  or  gift  of  the  tenant  in  fee,  in  an  action 
against  one  claiming  as  heir,  devisee,  or  executor,  and  the  mind 
of  the  profession  assents  at  once  to  the  admissibility  of  the  decla 
rations  of  the  tenant  in  fee,  as  competent  evidence  for  the  plaintiff 
against  the  heir,  executor,  or  devisee,  to  explain  the  character  and 
duration  of  the  possession  so  delivered,  whether  as  a  letting  to  hire 
or  as  a  gift.  Because  the  act  of  the  tenant  in  fee  is  obligatory  on 
those  claiming  under  him,  as  heir,  devisee,  or  executor. 


158  SLAVERY. 

11. 

WILLIAM  LEVERETT  et  al.  v.  JOHN  LEVERETT  et  al.     1827.     2 
M'Cord'sRep.  84. 

The  act  Temperance  Leverett,  by  a  deed  from  Ann  Floyd,  was  entitled 

which  re-  during  her  life  to  certain  slaves,  and  after  her  death  they  were 
Saves  on  given  over  to  the  complainants.  The  tenant  for  life  died  on  the 
tio^oTt  25th  day  of  March  1824.  Her  executors,  the  defendants,  kept 
tenant  for  tnese  slaves  on  the  plantation  until  they  finished  the  crop  of  that 
dies  after  year,  under  the  authority  given  to  them  by  the  act  of  Assembly  of 
March'  of  1789,  Pub.  Laws,  494.,  which  is  in  the  following  words  :  "  If  any 

0117   emain   Person  sna11  die  after  the  first  daV  °f  March  in  any  year>  tne  slaVCS 

thereon  to  of  which  he  or  she  was  possessed,  whether  held  for  life,  or  abso- 
crop,  does  lutely,  and  who  were  employed  in  making  a  crop,  shall  be  con- 
hire  gto  die  tinued  on  tne  lands,  which  were  in  the  occupation  of  the  deceased, 
remainder-  until  the  crop  is  finished,  and  then  be  delivered  to  those  who  have 
confers  the  right  to  them  ;  and  such  crop  shall  be  assets  in  the  executor's 
the  or  administrators'  hands,  subject  to  the  debts,  legacies  and  distribu- 


remainder  fo^  the  taxes,  overseer's  wages,  expenses  of  physic,  food  and 
to  the  es-  clothing  being  first  paid,  and  the  emblements  of  the  lands,  which 
dece^Ld16  shall  be  severed  before  the  last  day  of  December  following,  shall  in 
tenant.  jjke  manner  be  assets  in  the  hands  of  the  executors  or  administra 
tors  ;  but  all  such  emblements  growing  on  the  lands  on  that  day, 
or  at  the  time  of  the  testator's  or  intestate's  death,  if  that  happen 
after  the  said  last  day  of  December,  and  before  the  first  day  of 
March,  shall  pass  with  the  lands.  And  if  any  person  shall  rent  or 
hire  lands  or  slaves  of  a  tenant  for  life,  and  such  tenant  for  life 
dies,  the  person  hiring  such  lands  or  slaves  shall  not  be  dispos 
sessed  until  the  crop  of  that  year  is  finished,  he  or  she  securing 
the  payment  of  the  rent  or  hire  when  due."  The  complainants 
contended  that  the  defendants,  the  executors  of  Temperance 
Leverett,  should  pay  them  for  the  hire  of  the  negroes  from  the 
death  of  their  testatrix,  on  the  25th  of  March,  1824,  till  the  10th 
day  of  January,  1825,  when  the  crop  was  gathered. 

Dessaussure,  Chancellor.  The  first  exception  depends  upon 
the  construction  of  the  statute  of  1789,  which  exacts,  that  on  the 
death  of  a  tenant  for  life  of  any  estate  which  may  determinate  at 
an  uncertain  time,  such  death  occurring  after  the  first  of  March, 
the  slaves  of  the  estate  are  to  be  continued  on  the  estate  to  the 
end  of  the  year,  or  as  the  exception  expresses  it,  "  the  estate  is 
continued  to  the  end  of  the  year."  The  complainants  contend, 
and  the  commissioner  has  decided,  that  though  the  property  be  so 


HIRING  OF  SLAVES.  159 

continued  under  the  statute,  it  is  subject  to  hire.  The  statute  does 
not  say  so,  and  never  to  my  knowledge,  has  been  so  construed. 
I  do  not  think  it  the  sound  construction,  for  I  believe  an  essential 
benefit  was  intended,  and  not  an  illusory  one.  The  exception 
must  be  sustained,  and  so  much  of  the  report  overruled  and  cor 
rected.  The  complainants  appealed. 

Per  Cur.  Colcock,  J.  This  court  concur  with  the  Chancellor 
in  his  construction  of  the  act  of  1789  ;  and  I  can  safely  say,  that 
I  never  heard  a  doubt  expressed  as  to  the  correctness  of  such  con 
struction.  It  is  in  furtherance  of  the  common  law  doctrine  of 
emblements,  that  he  who  has  a  right  to  sow  shall  be  entitled 
to  reap;  which  cannot  be  done  in  this  country  unless  the  negroes 
employed  in  making  the  crop  are  permitted  to  remain  to  the  end 
of  the  year.  It  would  often  be  of  little  advantage  to  the  person 
taking,  to  remove  the  negroes  after  the  crop  is  planted  ;  whereas 
it  might  operate  as  a  total  destruction  of  the  crop.  The  appro 
priation  of  the  crop,  as  assets  in  the  hands  of  the  executors,  cer 
tainly  negatives  the  idea  of  allowing  compensation  by  way  of  hire  to 
the  person  entitled  to  the  negroes.  Decree  affirmed. 

12. 

BACOT  v,  PARNELL.    Jan.  T.  1831.    2  Bailey's  Rep.  424. 

The  action  was  brought  upon  a  promissory  note  for  the  hire  of  Where  a 
a  slave,  for  one  year.  The  slave  died  within  the  year,  and  the  de-  hiredbyth 
fendant  claimed  an  apportionment  by  way  of  discount,  which  was  y?aF  a?£. 
allowed  by  the  court  below.  the  time, 

The    Court,    O'JVW/,   J.,    after   referring   to   Byrd  v.   Boyd,  Swages 
4  M'Cord's  Rep.  246.,  George  v.  Elliot,  2  Hen.  &  Mun.  5.,  Rip-  f  OU0^. 
ley  v.  Wightman,  4  M'Cord's  Rep.  447.,  observed,  that  a  contract  ed. 
of  hiring  was  generally  an  entire  contract,  but  in  certain  cases  an 
apportionment  is  allowed,  and  this  was  one  of  those  cases.     In 
this  case  the  act  of  God  (the  death  of  the  slave)  has  ended  the  con 
tract  of  hiring.    The  owner  is  entitled  to  receive,  and  the  hirer  is 
bound  to  pay,  only  so  much  as  the  hire  was  worth  from  the  com 
mencement  of  the  hiring  until  the  slave's  death. 


160  SLAVERY. 


13. 

T.  AND  N.  SCUDDER  v.  SEALS.     June  T.  1824.     Walker's  Mis 
sissippi  Rep.  155. 

A  refusal         Per  Cur.     Ellis,  J.     After  the  death  of  Nathaniel  Scudder,  his 
wyithoutSc°on  wife  administered  upon  the  estate,  and  at  the  sale  of  the  personal 

lor  of  a  title  property,  Margaret  Scudder,  daughter  of  the  deceased,  purchased 
to  restore  . 

slavesupon  Diesy  and  Daniel,  the  negroes  m  controversy,  for  which  she  exe- 

ofethemtrue  cuted  her  promissory  note.     After  the  purchase  she  intermarried 

hiT^osIes  witil  one  Thomas  Seals,  who  reduced  the  negroes  into  possession, 

sion,issuch  and  worked  them  on  the  old  lady's  plantation,  but  separate  and 

brfng"dtheS  distinct  from  her  crop.     In  July,  1822,  Mrs.  Thomas  Seals  died, 

the6  ^rohv£  an(i  ner  husband  s°ld  tne  standing  crop,  and  hired  the  negroes  to 

sionsofthe  Thomas  Scudder,  one  of  the  present  defendants.     The  negroes 

Habeas  ,   .,      .,  .  «  . 

corpus  act.  were  hired  twice  to  Scudders,  and  finally  came  into  the  possession 
of  T.  Seals,  who  carried  them  to  the  house  of  James  Seals,  the 
plaintiff  below,  who  purchased  said  negroes.  The  petition  of 
James  Seals,  supported  by  the  oath  of  D.  Muse,  states  that  Diesy 
and  Daniel  were  either  stolen  or  enticed  out  of  his  possession, 
some  time  in  September  last.  Upon  the  hearing  of  the  evidence 
on  both  sides,  the  judge  had  the  property  restored  to  the  petitioner. 
From  the  evidence  introduced  on  the  trial  below,  there  cannot 
be  a  doubt  in  relation  to  the  right  of  property.  The  only  question 
for  our  consideration  is,  whether  the  petitioner  has  brought  himself 
within  the  provisions  of  the  19th  section  of  the  habeas  corpus  act, 
which  says  :  "  If  any  slave  or  slaves  for  life  shall  be  taken  or  se 
duced  out  of  the  possession  of  the  master,  owner  or  overseers  of 
such  slave  or  slaves,  by  force,  stratagem,  or  fraud,  and  unlawfully 
detained  in  the  possession  of  any  other  person,"  &c.  The  fact  of 
the  detention  of  the  negroes  by  Scudder,  when  he  must  have 
known  they  did  not  belong  to  him,  was  an  imposition  upon  the 
rights  of  the  plaintiff  below,  and  will  bring  the  case  within,  not 
only  the  letter,  but  the  spirit  of  the  statute.  It  was  a  trick,  a  strata 
gem,  to  deprive  the  owner  of  the  possession  of  his  property,  other 
wise  they  never  would  have  been  detained  after  legal  demand  be 
ing  made.  Diesy  and  Daniel  being  in  the  possession  of  Scudder,  is 
evidence  they  were  taken  by  him,  until  the  contrary  appears  ;  and 
a  refusal  to  deliver  them  over  to  the  owner,  is  conclusive  that  he 
wished  to  hold  the  property  without  even  the  color  of  title.  This 
amounts,  (as  I  have  before  stated,)  to  imposition,  trick  and  stra 
tagem,  presenting  a  case  liable  to  the  operation  of  the  statute,  in 


HIRING  OF  SLAVES.  161 

such  case  made  and  provided.     I  am  of  opinion   the  judgment  of 
the  court  below  ought  to  be  affirmed 

14. 

DILLIARD  v.  TOMLINSON.  April  T.  1810.  1  Munf.  Rep.  183. 
BREWER  v.  HASTIE,  3  Call's  Rep.  24. ;  DEANS  v.  SCRIBA, 
2  Call's  Rep.  419. 

Held  by  the  court,  that  an  executor  or  administrator  who  hires  of  interest 

.  on  the  hire 

slaves  belonging  to  the  estate  of  his  testator,  or  intestate,  ought  of  slaves. 
not  to  be  charged  with  interest  on  such  hire  from  the  day  it  be 
comes  due,  where  there  is  no  proof  that  it  was  then  collected,  or 
that  interest  from  that  day  was  received  upon  it;  but  a  reasonable  time 
to  collect  and  pay  the  money  should  be  allowed  before  the  com 
mencement  of  interest ;  and  no  interest  ought  to  be  charged 
where  the  right  to  the  slave  was  in  dispute.  The  same  principle 
was  adopted  and  acted  upon  in  Whitehorn  and  Wife  v.  Hines,  I 
Munf.  Rep.  557. 

15. 

STAFFORD  v.  STAFFORD.    Oct.   T.  1826.   17  Martin's  Louisiana 

Rep.  145. 

Per  Cur.  Porter,  J.  The  plaintiff  claims  from  the  defendant  The  defen- 
a  negro  slave,  and  hire  for  the  time  he  has  been  in  his  possession.  ^eSt  the0t 
The  answer  neither  admits  nor  denies  the  allegations  in  the  peti-  plaintiff's 

*  claim  for 

tion,  but  avers,  that  no  demand  has  ever  been  made  for  the  slave,  his  negro, 

and  that  if  he  be  on  the  plantation  of  the  defendant,  it  is  without 

his  consent,  and  that  the  plaintiff  might  have  taken  him  away. 

The   evidence  fully  sustains  the  allegations  of  the  petition,  and  no  demand 

justifies  the  verdict  given  in  the  court  below,  for  the  slave  and 

the  hire.     The  judgment  rendered  thereon  was  correct,  and  it  is, 

therefore,  adjudged  and  decreed,  that  it  be  affirmed  with  costs. 

16. 

KING  v.  COOPER,  Executor  of  King.  Dec.  T.  1829.  Walker's 

Rep.  359. 

Per  Cur.     This  was  an  action  of  assumpsit,  brought  by  the  ap-  Where  A. 
pellee  in  the  court  below,  as  executor  of  the  last  will  and  testament  queathinga 
of  George  W.   King,  deceased.     The  second  point  raised  in  this  ^h^e 
case  grows  out  of  the  following  facts,  stated  in  the  bill  of  excep-  is  in  his. 
tions,  viz.   that  a  certain  negro   man,  named  Denis,  (for  whose  at  the  testa* 
21 


.  f 


162  SLAVERY. 

tor'sdeath     hire  the  plaintiff  had  in  part  sued,)  had  been  hired  by  testator, 

and  so  re-  . 

mains,  the    a  short  time   previous  to  his  death,  to  the  defendant ;  the  negro 

AXemay°re-f  man  was  m  l^e  possession  of  defendant  at  testator's  death,  and  the 
cover  his      testator,  by  his  last  will  and  testament,  had  bequeathed  the  said  ne- 

hire  for  the  .     . — 

slave,  up  to  gro  man  Dennis  to  the  defendant ;  that  the  plaintiff,  as   executor, 
of^oneyear  ^a(l  demanded  said  negro  from  said  defendant,  immediately  after 
'       testator's  death,  but  the  defendant  refused  to  deliver  up  said  negro 
letters tes-    to  the  said  plaintiff;  that  one  year  after  letters  testamentary  had 
to  the  tjxe-    been  granted,  an  order  of  the   orphan's  court   had   passed,  re- 
havhV"  by'    quiring  the  executor  to  pay  off  the  legatees  and  distributees.     The 
law,  that      counsel  for  the  defendant  requested  the  court  to  instruct  the  jury, 
ainineinto,  that  the  said  negro  man  Dennis,  of  right,  and  according  to  law,  be- 
tiie  debbfof  longed  to  the  defendant,  and  that  the  plaintiff  was  not  entitled,  at  the 
the  estate.    t'me  tm'g  actiOR  was  commenced,  to  recover  from  the  defendant  hire 
for  the  negro's  services  since  the  death  of  the  testator,  without  evi 
dence,  on  the  part  of  the  plaintiff,  that  there  were  debts  due  by  the 
estate,  which  could  not  be  paid  without  it ;  and  the  counsel  further 
requested  the  court  to  charge  the  jury,  that  plaintiff  had  miscon 
ceived  his  remedy,  and  was  not  entitled  to  recover  in  this  form  of 
action.     All  of  which  instructions  the  court  refused  to  give.     The 
question  for  this  court,  arising  upon  this  statement  of  facts,  is, 
whether  the  defendant  was  bound  to  pay  for  the  hire  of  this  negro 
slave  for  the  time  specified  in  the  agreement  between  him  and  the 
deceased,  inasmuch  as  the  deceased  had  bequeathed  said  negro  to 
him,  the  said  defendant.     There  would  have  been  no  doubt,  if  this 
slave  had  been  hired  to  a  stranger,  but  that  the  plaintiff  might  have 
recovered  the  hire  ;  and  although  this  slave  was  bequeathed  to  the 
defendant,  he  could  not  legally  call  on  the  executor  for  his  bequest, 
until  after  the  expiration  of  one  year  from  the  time  of  taking  out 
letters  testamentary.     See  Revised  Code,  p.  55.  sec.  91.   And  al 
though  a  legal  right  in  the  property  of  said  slave  vested  in  the  de 
fendant,  as  legatee  on  the  death  of  the  plaintiff's  testator;  yet  the 
legatee  could  not  reduce  that  right  to  possession,  until  after  the  ex 
piration  of  one  year  from  granting  the  said  letters  testamentary, 
during  which  time  he  was  bound  to  pay  the  hire.      The  executor 
had  one  year  to  examine  into,  and  settle  the  debts,  &c.  of  the  estate. 
I  am  therefore,  clearly  of  opinion,  that  the  plaintiff  had  the  same 
right  to  have   recovered  this  year's  hire  from   the  legatee,  as  he 
would  have  had  from  a  stranger,  who  had  no   interest  in  the  be- 
quests  of  the  deceased.     Judgment  affirmed. 


HIRING  OF  SLAVES.  163 

17. 

CLAGGETT  v.  SPEAKE.  May  T.  1798.   4  Har.  &  M'Hen. 

Rep.  162. 

Special  action  on  the  case  for  the  nonperformance  of  a  parol  Ifa  person 

.  ."     ./v    who  hires 

agreement,  to  take  care  of,  and  return  certain  slaves  to  the  plaintiff,  slaves,  and 
who  were  at  work  on  the  defendant's  vessel,  at  Alexandria.     It  return63 
appeared  that  the  defendant  agreed  with  the  plaintiff,  if  he  would  fhem  safe 
suffer  the  negroes  to  remain  until  Saturday  at  their  work  on  the  cular  man- 
vessel,  he  would  carry  them  up  to  Georgetown  in  the  ship's  yawl,  they  are 
and  deliver  them  safe  to  the  plaintiff.      It  further  appeared,  that 


afterwards  the  plaintiff  told  the  negroes  that  on  Saturday  they  must  in  a  differ- 
leave  the  vessel,  and  make  the  best  of  their  way  home,  and  take  ner,  he  is 
care  of  the  tools.     On  Saturday  after  the  work  was  finished,  the  f^^ir  6 
negroes  went  off  in  a  pilot  boat,  and  were  drowned. 

Per  Cur.  Gouldsborough,  Ch.  J.  The  court  are  of  opinion, 
and  direct  the  jury,  that  if  they  shall  be  of  opinion,  from  the  whole 
of  the  evidence,  that  the  plaintiff  gave  the  negroes  orders  to  return 
inconsistent  with  the  contract  and  engagement  made  by  the  de 
fendant  and  the  plaintiff,  then  such  directions,  so  given  to  the  ne 
groes,  will  release  the  defendant  from  any  responsibility  for  the 
event  which  afterwards  happened.  But  the  court  refuse  to  direct 
the  jury,  that  if  the  plaintiff  did  give  the  directions  stated  by  the 
defendant,  in  the  manner,  and  under  the  circumstances  so  stated, 
the  defendant  is  thereby  freed  from  responsibility  for  the  loss  of 
the  negroes.  Verdict  and  judgment  for  the  plaintiff,  and  the  defend 
ant  appealed  to  this  court,  and  the  judgment  was  affirmed. 

18. 

THE  STATE  v.  CLEMENS.    Dec.  T.  1832.    3  Devereaux's  North 
Carolina  Rep.  472. 

The  defendant  was  convicted  on  the  following  indictment  :  —  The  act  of 
"  The  jurors  for  the  state,  upon  their  oath,  present  that  Willie  JJ9^^ 
Clemens,  late  of  &c.  on  &c.,  with  force  and  arms  at,  &c.,  unlaw-  prevent 
fully  did  permit  his  slave,  by  the  name  of  March,  to  hire  his  own  slaves  from 
time  to  divers  persons,  to  the  jurors  aforesaid  unknown,  contrary  jjjjjj^j,, 
to  the  act  of  the  General  Assembly  in  such  case  made  and  provi-  time,  does 

not  subject 

ded,  and  against,"  &c.     The  defendant  was  convicted,  and  judg-  the  master 
ment  for  the  state  being  rendered,  he  appealed.  dictment, 


Per  Cur.     Ruffin,  J.     This  is  an  indictment  against  the  master; 
and  is  founded  on  a  misconception  of  the  act  of  1794.     The  sta-  gainst  the 

slave  alone. 


164 


SLAVERY. 


When  a 


cessl  1S  ne~ 


tute  directs  the  grand  jury  to  make  "  presentment  of  any  slave." 
The  great  purpose  of  the  act  is  to  prevent  and  abate  the  nuisance, 
as  was  said  in  Woodman's  case.  The  proceeding  is,  therefore, 
primarily  against  that,  and  the  notice  to  the  master  is  to  give  him 
an  opportunity,  as  in  other  cases,  of  defending  his  slave,  and  not 
defending  himself  personally.  It  is  true,  the  owner  is  indirectly 
punished,  by  having  his  slave  hired  out  for  one  year.  But  that  is 
only  the  incidental  consequence  of  the  judgment.  The  personal 
liability  of  the  master  is  for  the  penalty  of  twenty  pounds.  The 
act  does  not  make  him  guilty  of  a  misdemeanor,  nor  subject  him 
to  indictment.  Judgment  reversed. 

19. 

GRICE  v.  JONES.   July   T.    1827.    1   Stewart's  Alabama   Rep. 

254. 

Detinue  for  a  slave  hired  to  the  defendant  until  he  was  demanded 
V  the  owner. 

The  defendant  Played  the  court  to  instruct  the  jury,  that,  if  they 
believed  the  slave  in  question  had  been  hired  to  him  to  continue  in 
his  service  until  demanded,  a  special  demand  was  necessary  before 
the  plaintiff  could  have  a  right  of  action.  The  court  refused  to 
give  the  instruction. 

Per  Liscomb,  Ch.  J.  "We  are  of  opinion,  that  if  the  slave  was 
hired  on  these  terms,  a  special  demand  must  precede  the  right  of 
action.  Judgment  reversed. 


made"  out 


feet  a  sub- 
sequent 

sale"  l?d  the 
mortgagor, 
unless  it  be 


(  IX.  )  OF  MORTGAGE  OF  SLAVES.* 

1. 

VERDIERE  v.  LEPERTE.     May  T.  1832.    4  Louisiana  Rep.  41. 

The  action  was  brought  to  recover  from  the  defendant  a  num- 
ber  of  slaves>  which  the  Plaintiff  purchased  of  one  Campbell,  at 


*  **  has  been  fre(luently  stated  that  slaves  are  considered  as  property,  and  in  most  of 
the  states'  ^ey  Bie  considered  as  chattels  personal.  They  are,  therefore,  subject  to 
those  rules  and  regulations,  which  society  has  established  for  the  purchase  and  sale,  and 
trammi88ion  from  one  to  another,  of  that  species  of  property.  They,  therefore,  may  be 


OF  MORTGAGE  OF  SLAVES.  165 

Tallahassee,  in  the  territory  of  East  Florida.  By  the  terms  of  sale, 
Campbell  reserved  a  right  of  redeeming  the  slaves,  upon  the  pay 
ment  of  the  purchase  money,  within  a  certain  time  ;  but  before  that 
time,  he  brought  the  slaves  to  New  Orle  ans,  and  sold  them  to  the 
defendant.  The  sale  of  Campbell  was  never  recorded  in  Louisiana. 
Judgment  for  defendant. 

Per  Cur.  Martin,  J.  A  vendee  who  suffers  property  to  remain  in 
the  possession  of  the  vendor,  cannot  resist  the  claim  of  a  subsequent 
bonajida  purchaser.  And  whether  the  indenture  be  considered  as 
a  deed  of  mortgage,  as  we  conceive  it  really  is,  or  as  a  deed  of 
sale,  as  the  plaintiff  contends,  it  appears  to  us,  the  judge  was 
equally  correct  in  rejecting  his  claim,  on  account  of  the  absence 
of  the  record  of  the  mortgage  in  this  state.  A  purchaser  is  not 
affected  by  a  mortgage  on  property  executed  out  of  the  state, 
unless  it  be  recorded  therein. 

2. 

DABNEY  et  al.  v.  GREEN.  April  T.  1809.  4  Hen.  &  Munf.  100.; 
ROBERTSON  v.  CAMPBELL  &  WHEELER.  2  Call's  Rep.  428.; 
CHAPMAN  v.  TURNER,  1  Call's  Rep.  380.  394. 

The  court,    Tucker,   Roane,  and  Fleming,  J's.,  held,  that  under   Whether 
circumstances,  a  bill  of  sale,  though  absolute  on  its  face,  will  be 


deemed  a  mortgage  ;  the  true   question  always  being  whether  a  conditional 
purchase  of  the  property,  or  a  loan  of  money,  or  forbearance  of  a  mortgage, 
debt.    And  the  court  allowed  a  bill  of  sale  absolute,to  be  consider-  ™e^d  Up"on 
ed  as  a  mortgage.     And   the   same   principle  was   recognised  in  g1^1^"1"  " 
Ross  v.  Norvell,  1  Wash's  Rep.  14.  the  case, 

and  is  open 
for  expla- 
3.  nation. 

M'DOWELL  v.  HALL.    Fall  T.  1812.     2  Bibb's  Rep.  610. 

Held  by  the  court,  Owsley,  J.,  that  where  there  was  an  absolute  And  an  ab- 
bill  of  sale  for  slaves,  and  a  conditional  defeazance  and  stipulation  of-  saie  and 
given  to  the  vendor,  they  are  to  be  taken  together,  and  make  one  a  defea- 

•*  zance  are 

_  _      to  be  taken 

together. 

mortgaged  as  personal  property,  or  are  the  subject  of  a  qualified  or  conditional  sale, 
to  suit  the  wants  of  the  owner  or  purchaser  of  them.  They  are  declared  to  be  per 
sonal  estate,  by  the  Rev.  Code  of  Mississippi,  379.;  Rev.  Code  of  Virginia,  vol.  1.  p. 
431.  47.  Indeed,  they  are  considered  the  subjects  of  mortgage  in  all  the  states  by  cus 
tom,  and  which  exists  in  many  of  the  states  by  express  statutory  provisions. 

By  the  Black  Code  of  Louisiana,  vol.  1  Dig.  p.  102.  sec.  10,  it  is  declared,  that  slaves 
shall  be  reputed  and  considered  real  estate;  shall  be,  as  such,  subject  to  be  mortgaged, 
according  to  the  rules  prescribed  by  law,  and  they  shall  be  seized  and  sold  as  real 
esta  te. 


1G6  SLAVERY. 

contract ;  and  the  defeazance  having  suspended  the  right  of  the 
vendee,  to  take  possession  of  them,  until  the  death  of  the  vendor, 
the  statute  of  limitation  did  not  begin  to  run  until  the  death  of  the 
.    vendor. 

4. 

DORSET    v.    GASSAWAY.     June    T.  1809.     2  Har.    &   Johns. 

Rep.  402. 

sd?by°the  Held  by  the  court'  Chase>  Ch'  J'»  that  if  a  mortgage  of  slaves 
mortgagor,  was  subsisting,  and  the  mortgagor,  claiming  the  absolute  owner 
ship  of  them,  sold  them  for  a  full  consideration,  although  as  to  the 
mortgagee  the  sale  would  transfer  only  the  equitable  interest,  yet 
as  between  the  vendor  and  vendee,  the  operation  of  the  contract 
would  be  to  pass  the  absolute  ownership  in  the  slaves  to  the  ven 
dee,  and,  notwithstanding  the  after  discharge  of  the  vendee,  under 
the  insolvent  law,  and  his  purchase  of  the  slaves  from  the  mort 
gagee,  his  subsequent  acts,  in  perfecting  his  title  to  the  slaves,  will 
enure  in  law  to  confirm,  and  not  to  defeat  his  contract. 

5. 

DORSEY  v.   GASSAWAY.     June  T.  1809.     2   Har.  &  John's. 

Rep.  402. 

*  A  sale  by       Per  Cur.     Chase,  Ch.  J.     If  a  mortgage  of  slaves    was  sub- 
gor™aS~  sistin&  and   the  mortgagor  claiming  the  absolute  ownership  of 
chattels  to    t*iem»  so^  t^lem  ^*or  a  ^u11  consideration,  although  as  to  the   mort- 
the  vendee  gage,  the  sale  would  transfer  only   the   equitable  interest,  yet  as 
the  parties'!  between  the  vendor  and  vendee,  the   operation  of  the  contract 
would  be  to  pass  the  absolute  ownership  in  the  slaves  to  the  ven 
dee. 


*  A  mortgagor  is  the  owner  against  the  world,  and  only  subject  to  the  lien  of  the 
mortgagee.  And  if  the  thing  mortgaged  be  land  he  is  supposed  to  be  seized  before 
foreclosure. 


OF  MORTGAGE  OF  SLAVES.  167 

6. 

HUGHES  v.  GRAVES  et  al.     Spring  T.  1822.     1  Little's  Rep. 

317. 

Palmer  mortgaged   two  slaves  to  Hughes,  Fanny  and   Esther.  The  chil- 
Palmer  afterwards  sold  Fanny  to  Walker,  and  he  also  sold  Esther  fer^,f  a 
to   Graves.     The    mortgage  debt  not  being  paid,  Hughes   filed  8l*™dmort' 
a  bill   against  Palmer,  Walker,   and   Graves.      Walker,   in  his  born  after 
answer,  admitted  that  he  purchased  Fanny  ;  but  averred  it  was  li 
without  notice  of  the  mortgage.     The  court  pronounced  a  decree 
directing  the  sale  of  Fanny.     Hughes  filed   a  supplemental  bill,  muchiiable 

•  11  •  .to  the  de- 

Stating   the  proceedings   on   the    former  bill,  and    avernng,  that  mandofthe 


Esther,  when  purchased  by  Graves,  was  of  little  or  no  value,  and 
soon  after  died  ;  and  that  Fanny,  subsequent  to  the  execution  of  herself, 
the  mortgage,  had  two  children,  which  were  claimed  by,  and  in 
the  possesession  of  Walker,  and  prays  that  they  may  be  delivered 
up  to  satisfy  the  balance  of  the  mortgage  debt.  But  the  court  de 
creed  that  Graves,  the  purchaser  of  Esther,  should  pay  the  bal 
ance  of  the  mortgage  debt. 

Per  Cur.  There  can  be  no  doubt  but  the  slave  Fanny  was 
liable  to  the  mortgage.  Walker  having  been  a  purchaser  without 
notice,  in  fact,  of  the  mortgage,  is  an  immaterial  circumstance. 
For  the  mortgage  having  been  duly  recorded,  the  law  will  pre 
sume  notice.  Besides,  the  legal  title  was  by  the  mortgage  vested 
in  Hughes,  and  the  want  of  notice  only  protects  a  purchaser  against 
a  latent  equity,  and  not  against  the  legal  title.  Nor  can  there  be 
any  doubt  but  that  the  children  of  Fanny,  born  after  the  execu 
tion  of  the  mortgage,  are  as  much  liable  as  Fanny  herself;  for  it 
is  a  settled  rule,  that  the  offspring  belongs  to  the  owner  of  the 
mother,  partus  sequitur  ventrem  being  a  maxim  of  the  civil  law. 

7. 

TURNBULL  v.  MIDDLETON  et  al.      Dec.  T.  1831.      Walker's 
Mississippi  Rep.  413. 

Per  Cur.     Black,  J.     The  court  are  unanimously  of  opinion,  The  mort' 
that  where  slaves  are  mortgaged  for  the  payment  of  a  debt,  the  slaves  not 
mortgagor,  or  other  person  having  the  slaves  in  possession,  is  lia-  hire*on* 
ble  for  hire  after  the  forfeiture  of  the  condition  of  the  mortgage, 
by  the  nonpayment  of  t 

c         , 

spring  ot  such  slaves,  bor 
lien  under  the  mortgage. 


by  the  nonpayment  of  the  money  on  the   day  due  ;  that  the  off-  dition  of 

c         ,  the  mort- 

spring  ot  such  slaves,  born  after  such  forfeiture,  are  not  subject  to  gage. 


168  SLAVERY. 

That,  in  this  case,  the  mortgagee  having  released  the  other  slave, 
in  the  mortgage  mentioned,  for  a  much  less  sum  than  their  real 
value,  and  being  more  than  sufficient  to  have  fully  satisfied  the  debts, 
and  having  retained  only  $700,  is  evidence  of  combination  between 
mortgagor,  and  mortgagee  to  prejudice  the  rights  of  an  innocent 
purchaser  of  one  of  the  slaves  mortgaged  ;  and  would  be  so  great 
a  hardship  on  this  innocent  purchaser,  for  valuable  consideration, 
that  the  court  will  not  enforce  the  mortgage  lien. 

8. 

DABNEY  AND  OTHERS,  EXECUTORS  AND  LEGATEES  OF   SADLER  v. 
GREEN.   April  T.  1809.    4  Hen.  &  Munf.  Rep.  101.  109. 

Tucker,  J.  The  bill  states,  that  Green,  being  indebted  to  Sadler, 
on  the  7th  of  March,  1778,  executed  a  deed  to  him  for  six  negroes, 
to  secure  the  payment  of  the  debt,  and  that  Sadler  executed  at  the 
same  time  a  defeazance,  whereby  he  agreed  that,  on  payment  of 
£126,  1  Is.,  (the  debt  before  mentioned,)  in  three  years,  the  right 
of  Sadler  to  the  slaves  should  cease.  That  Green  was  to  keep 
possession  of  the  slaves,  paying  interest  on  his  debt,  for  which 
Green  at  different  times  gave  his  notes,  under  the  name  of  hire  for 
the  slaves.  That  Green  being  absent  from  his  home  for  a  short 
time  on  business,  in  December,  1789,  Sadler  took  out  an  attach 
ment  on  his  estate,  which  was  levied  on  these  negroes.  Judgment 
in  the  attachment  suit  was  obtained  against  Green,  and  the  slaves 
sold  under  an  execution  issued  upon  that  judgment ;  and  that 
they  were  all  purchased  by  Sadler  for  £159.  The  object  of  the 
bill  is  to  set  aside  the  sale  and  redeem  the  negroes.  The  defend 
ants  admit  that  Green  was  indebted  to  Sadler  at  the  time  he  ex 
ecuted  the  bill  of  sale,  which  they  insist  was  an  absolute  convey 
ance  and  transfer  of  the  property  both  at  law  and  in  equity.  They 
then  proceed  to  state,  by  way  of  defensive  allegation,  that  Green, 
before  suing  out  the  attachment,  had  absolutely  absconded,  and 
was  on  board  a  vessel  with  the  negroes,  and  other  effects,  six 
miles  from  his  home,  when  he  was  overtaken  by  the  deputy  sheriff, 
in  a  calm,  who  levied  the  attachment  on  the  slaves.  This  fact  is 
proved  by  the  testimony  of  two  witnesses  ;  one  of  whom  (the 
deputy  sheriff)  says,  that  Green,  after  some  conversation,  observed, 
that  if  there  had  not  been  an  unlucky  calm,  he  should  have  been 
far  enough  out  of  reach  ;  and  thinks  he  said  he  should  have  been 
in  Carolina.  That  the  bill  of  sale  given  by  Green  for  the  negroes, 
was  intended  only  as  a  security  for  his  debt  to  Sadler,  and  not  as 
an  absolute  conveyance,  or  even  a  conditional  sale,  is,  I  think, 


OF  MORTGAGE  OF  SLAVES.  169 

obvious,  not  only  from  the  papers  themselves,  but  from  the  admis 
sion  in  the  answers,  that  there  was  a.  previous  debt  due  from  Green 
to  Sadler,  which  distinguishes  it  from  the  case  of  Chapman  v.  Tur 
ner,  1  Call's  Rep.  280.  ;  and  brings  it  within  those  of  Ross  v.  Nor- 
vell,  1  Wash.  Rep.  14.  ;  and  Robertson  v.  Campbell  and  Wheeler, 
2  Call's  Rep.  424.  I  consider  the  original  transaction  between  the 
parties,  therefore,  merely  as  a  mortgage  ;  and  I  hold,  that  if  a 
creditor  by  bond,  or  other  legal  right  which  he  is  enabled  to  pro 
secute  with  effect  at  law,  obtains  from  his  debtor  a  mortgage  by 
way  of  security  for  the  same,  and  then  prosecutes  a  suit  at  com 
mon  law,  and  having  obtained  judgment  for  his  debt,  levies  the  ex 
ecution  upon  the  mortgaged  property,  which  is  sold  by  the  sheriff, 
and  purchased  by  the  creditor,  the  debtor's  right  to  redeem  is  not 
extinguished  by  this  proceeding  at  law,  but  his  equity  of  redemp 
tion  continues  as  fully  and  completely  as  before  the  execution  was 
levied,  or  the  judgment  obtained.  And  this  upon  principle  ;  for 
the  creditor  having  accepted  of  the  security  for  his  debt,  is  bound  by 
every  condition  that  a  court  of  equity  might  impose  upon  him  ;  nor 
can  he  by  his  own  act  absolve  himself  from  any  such  equitable 
obligation. 

The  case  of  Lord  Cranstown  v  Johnson,  3  Ves.  jun.  170.,  is  a 
much  stronger  case  than  the  one  I  have  put ;  and  shows  that  a 
creditor  purchasing  property,  sold  under  execution  to  pay  his  own 
debt,  may,  under  circumstances,  be  considered  as  holding  the  same 
only  as  security  for  his  debt,  and  the  charges  he  has  been  put  to. 
But  there  are  several  features  in  this  transaction  which  give  to  this 
particular  case  a  very  different  complexion.  Green  is  proved  to 
have  absconded  fraudulently  with  his  family  and  property,  among 
which  were,  or  a  considerable  part  of  these  slaves,  and  had  actually 
embarked  on  board  a  vessel,  and  proceeded  some  distance  on  his  way 
to  another  state,  or  some  other  quarter  of  this  state,  where  he  could 
conceal  himself  and  his  property  from  the  very  creditor  to  whom  he 
had  pledged  it  as  a  security.  One  of  the  soundest  maxims  of  equity  is, 
'  that  he  who  hath  committed  iniquity,  shall  not  have  equity.'  Francis* 
Max.  2. ;  that  is,  as  explained  by  Fonblanque,  b.  I.e.  2.  s.  13,  note 
(p,)  where  such  person  is,  as  in  the  present  case,  plaintiff,  Willing- 
ham  v.  Jo^ce,  3  Ves.  jun.  168.,  is  not  so  strong  a  case  as 
this  ;  for  here  the  present  plaintiff  did  all  in  his  power  to  de 
fraud  his  creditor.  The  latter  was  driven  to  seek  redress  at  law. 
Whether  the  proceedings  in  the  cause  were  regular  or  erroneous, 
cannot  be  inquired  into  in  a  collaterate  way.  The  judgment  must 
22 


170  SLAVERY. 

be  taken  to  be  right,  the  sale  lawful,  and  the  purchase  by  the  credi 
tor  the  same  as  the  purchase  by  any  other  person.  The  fraud  of 
Green  has  utterly  deprived  him  of  the  aid  of  a  court  of  equity,  which 
ought  never  to  interpose  to  deprive  a  fair  creditor,  as  Sadler  was, 
of  a  legal  advantage,  gained  in  a  due  course  of  law,  in  consequence 
of  a  most  flagrant  attempt  on  the  part  of  the  debtor  to  defraud  him. 
The  staleness  of  the  claim,  postponed  till  after  Sadler's  death,  and 
barred  at  law  by  the  act  of  limitations,  furnishes  additional  rea 
sons  in  support  of  this  opinion.  The  other  judges  concurred  in 
this  opinion. 

9. 

FIELD  v.  BEELER  et  al.  Spring  T.  1813.  3  Bibb's  Rep.  18. 
Who  to  be  Held  by  the  Court,  Boyle,  Ch.  J.,  that  upon  a  bill  to  redeem  a 
£sde  Par"  slave  pledged  to  secure  the  payment  of  money,  it  is  sufficient  to 

make  the  executor  of  the  mortgagee  a  party,  and  it  is  unnecessary 

to  make  the  heirs  parties. 

10. 

MOORE'S  EXECUTOR  v.  WILLIAM  AYLETT'S  EXECUTORS,  AND 
PHILIP  AYLETT.  Oct.  T.  1806.  1  Hen.  &  Munf.  Vir 
ginia  Rep.  29. 

On  a  sale         In  this  case  the  court  of  appeals  decided  that  if  it  be   agreed 

by  the      ^   between  a  mortgagor   and   mortgagee,  that,  in   case   the  debt   be 

he  mustac-  not  paid,  the  mortgagee  may  sell  the  property;  and  in  consequence 

?h°eUsirplus  thereof,  he  sells  without  proof  of  fraud,  he  is  accountable  to  the 

mortgagor  for  the  surplus  of  the  sum  for  which  he  sells  above  the 

amount  of  the  debt,  with  interest  on  such  surplus  until  payment ; 

but  not  for  profits,  unless  he  appears  to  have  received  them  previous 

to  the  sale,  nor  for  the   value  of  the   property  at  any  subsequent 

time. 

11. 
HEAD  v.  HOBBS  et  al.     April  T.  1829.     1    J.    J.  Marshall's 

Rep.   283. 

The  pos-        Held  by  the  court,  Robertson,  Ch.  J.,  that  possession  of  a  mort- 
thfmor0/   gagor,  even  after  forfeiture,  is  not  per  se  evidence  of  fraud;  when 
foTfeTtufe6*  ttie  mortgaoe  or  conditional  sale  is  good   in  the  beginning,  it  will 
isnotfraud  continue  good  in  law,  notwithstanding  the  possession  of  the  mort 
gagor  or  the  vendor.     See  Hamilton  v.  Russel,  1   Cranch's  Rep. 
309.  ;  M'Gowan  v.  Hay,  5  Little's  Rep.  243. 


OF  MORTGAGE  OF  SLAVES. 

12. 

FENWICK  v.  MACY'S  EX'RS.  Spring  T.  1833.  1  Dana's  Rep. 
277.  ;  Ross  v.  NORVELL,  1  Wash.  Rep.  14.  ;  YOUNG  v. 
WISEMAN,  7  Monroe's  Rep.  270.;  MIMS  v.  MIMS,  3  J.  J. 
Marshall's  Rep.  103. 

The  facts  of  the  case  appeared  to  be  these  :   Macy  advanced  The  Pos 

session  of 

money  to  Fen  wick  in  1807,  on  the  sale  of  three  slaves,  which  Fen-  a  mortga- 
wick  retained  at  hire.  In  June,  1822,  Fenwick  filed  a  bill,  in  mortgagor 
which  he  claimed  his  right  to  redeem  the  slaves,  on  the  ground  ^^bl^is 
that  the  contract  between  him  and  Macy  should  be  regarded  as  a  notaffected 
mortgage.  The  executors  of  Macy  insisted  upon  the  lapse  of  ute  of  limi- 
time  in  bar  of  relief.  The  court  below  held,  that  the  contract  of 


sale  being  intended  only  as  security  for  the  advance  of  money,  the  beg'ns  to 

sale  was  to  be  treated  as  a  mortgage,  and  dismissed  Fenwick's  bill  the  amica- 

upon  the  ground,  that  as  five  years  adverse  possession  was  a  legal  s\o^3sse 

bar  to  the  recovery  of  a  slave  in  an  action  at  law,  the  chancellor  chanpd  to 

an  adversa- 

should  adopt  the  same  rule  and  apply  it  to  bar  the  mortgagor's  ry  one,  and 
equity  of  redemption,  after  the  mortgagee  had  been  in  possession  possession 
five  years.  The  statute  of  limitations  would  furnish  the  rule,  and  ued^T^" 
would  be  applied  by  the  chancellor.  years  it  is 

Per  Cur.      Underwood,  J.     Upon  the  principle  of  conforming  to  tohave6 
the  statute  of  limitations,  the  chancellor  should,  where  slaves  are  verse  afroi» 
adversely  held  by  a  mortgagee  for  more  than  five  years,  refuse  a  tl?e  besin- 
redemption  when  applied  for  by  the  mortgagor.     To  put  a  strong 
case  ;  if  possession  of  a  slave  be  with  the  mortgagee,  and  he  were 
to  notify  the  mortgagor  that  his  right  to  redeem  was  denied,  and 
that  the  mortgagee  held  the  slaves  in  his  own  right,  free  from  in- 
cumbrance,  the  chancellor  would  give  no  relief  after  five  years' 
acquiescence  on  the  part  of  the  mortgagor,  in  the  possession  of 
the  mortgagee  under  such  circumstances.     If  he  did,  it  would 
outrage  the  policy  of  the  legislature  as  manifested  by  the  statute. 

The  right  which  a  mortgagor  of  a  slave  has  to  redeem,  may  therefore 
depend  upon  the  nature  and  character  of  the  possession  held  by 
the  mortgagee.  If  the  possession  be  adverse,  he  must  seek  his 
remedy  within  five  years.  If  it  be  not  adverse,  he  may  have  twenty 
years  to  redeem,  and  no  longer.  Why  not  a  longer  time,  when 
the  possession  is  not  adverse  1  Because,  after  twenty  years,  the 
equity  is  stale,  and  the  presumption  is  strong  that  the  mortgaged 
debt  is  satisfied,  and  good  policy  requires  that  things  long  acqui 
esced  in,  should  not  be  disturbed  on  account  of  the  difficulty  of 
reaching  the  whole  truth. 


172  SLAVERY. 

Per  Robertson,  Ch.  J.  The  character  of  the  thing  mortgaged, 
whether  it  be  a  slave  or  land,  cannot  affect  the  dignity  of  the 
mortgage  itself.  The  equity  of  redemption,  being  a  right  exclu- 
.  sively  within  the  cognisance  of  the  chancellor,  does  not  come 
within  the  operation  of  any  statutory  limitation.  But  policy  and 
justice  require,  that  all  equitable  claims  should  be  asserted  in  a 
reasonable  and  convenient  time.  Twenty  years  have  been  de 
signated  by  chancery  practice  as  the  proper  time  within  which 
rights,  purely  equitable,  should  be  asserted,  and  beyond  which,  the 
chancellor  should  not,  generally,  hear  an  application  for  relief. 
In  Hovenden  v.  Lord  Annesly,  2  Sch.  &  Lef.  637.,  Lord  Redes- 
dale  said,  that,  "every  new  right  of  action  in  equity  that  accrues 
to  the  party  must  be  acted  upon,  at  the  utmost,  within  twenty 
years."  This  must  be  understood,  with  the  implied  qualification, 
that  there  has  been  no  intermediate  disability  or  recognition. 

A  mortgagor  or  mortgagee  in  possession  under  the  mortgage, 
holds  as  mortgagor  or  mortgagee,  and  not  adversely,  the  one  to  the 
other.  As  long  as  he  so  holds,  the  statute  of  limitations  does  not, 
even  as  to  the  legal  right,  commence  running  ;  and  it  will  not 
commence  at  law  until  the  amicable  possession  shall  have  become 
adverse.  But  if  either  the  mortgagor  or  mortgagee  be  permitted 
to  remain  in  possession  for  twenty  years,  without  any  recognition, 
express  or  implied,  of  the  existence  of  the  debt,  there  should  after 
wards  be  no  eviction,  foreclosure,  or  redemption,  against  the  will 
of  the  party  so  continuing  in  possession.  The  law  will  not  pre 
sume  that  such  a  possession,  thus  long  continued,  had  been  ami 
cable,  but  will  consider  it,  after  the  end  of  twenty  years,  to  have 
been  adverse  from  the  beginning,  or  from  the  time  when  the 
mortgage  debt  was  due,  unless  some  opposing  facts  interfere. 
The  payment  of  the  debt  will  be  presumed,  and  nothing  appearing 
to  the  contrary,  the  presumption  will  be,  that  it  was  paid  when  it 
became  due,  and  that,  of  course,  the  possession,  from  that  time 
was  adverse,  and  not  in  the  character  of  mortgagor  and  mortgagee. 
Hence,  if  the  mortgagee  bring  an  ejectment  against  the  mortgagor, 
after  such  unqualified  possession  of  twenty  years,  the  statute  of  limi 
tations  may  bar  the  action  ;  and  if  he  filed  his  bill  to  foreclose,  he 
may  be  barred,  not  only  in  analogy  to  the  statute  of  limitations,  but 
because  his  claim  has  become  too  stale  and  questionable  to  justify 
an  enforcement  of  it  in  equity.  The  same  principles  apply  to  the 
mortgagor's  equity  of  redemption,  after  a  continued  possession  by 
the  mortgagee  for  twenty  years.  But  if,  within  twenty  years, 


OF  MORTGAGE  OF  SLAVES.  173 

there  shall  have  been  'any  acknowledgment  of  the  subsistence  of 
the  debt,  or  of  a  holding-  under  the  mortgage,  the  lapse  of  time 
may  not  operate  as  a  bar  at  law  or  in  equity. 

If  a  slave  be  mortgaged,  less  than  twenty  years  will  not  bar  the 
equity  of  the  mortgagor,  or  the  right  of  the  mortgagee,  unless  the 
party  in  possession  shall  have  shown  clearly  that  he  disclaimed 
holding  under  the  mortgage,  and  had  held  independently  of  it,  and 
adversely  to  the  right  of  the  other  party  to  it.  In  less  than  twenty 
years  neither  law  norequity  will  presume  a  transmutation  of  the  pos 
session,  from  its  original  and  amicable,  into  an  inconsistent  and  hos 
tile  nature.  The  right  to  redeem  a  mortgaged  slave  is  precisely  the 
same  as  the  equity  of  redemption  in  land.  It  is  the  creature  of 
equity,  and  is  nothing  but  equity.  And  therefore  the  statute  of  limita 
tions  does  not  apply  to  it ;  but  the  right  to  redeem  may  continue 
for  twenty  years  to  exist ;  and  indeed,  facts  may  have  intervened 
which  may  extend  it  beyond  twenty  years,  just  as  if  the  thing 
mortgaged  had  been  land.  But  as  soon  as  the  mortgagee  shall  re 
nounce  his  mortgage,  and  assert  an  absolute  and  indefeasible  right 
to  the  slave,  independently  of  the  mortgage,  the  relation  of 
mortgagor  and  mortgagee  will  cease  to  exist,  and  the  statute  of 
limitations  will,  of  course,  eo  instanti,  commence  running ;  and, 
consequently,  such  an  adversary  holding  for  five  years  would 
be  a  legal  bar  for  restitution,  and  should  equally  bar  the  equity  of 
redemption  ;  for  in  such  case  the  equitable  light  would  corres 
pond  with  the  legal  right,  and  five  years'  adversary  possession  would 
have  vested  title  absolutely  in  the  holder.  See  Reed  v.  Lansdale, 
Hard.  Rep.  6.;  Ballinger  v.  Worley,  1  Bibb's  Rep.  198.;  Breck- 
inridge  v.  Brooks  et  al.,  2  Marsh.  Rep.  339  ;  Morgan's  heirs  v. 
Boon's  heirs,  4  Monroe's  Rep.  297. 

13. 

CLAIBORNE  v.  HILL.      Spring  T.  1793.     1    Wash.   Rep.  177. 

185. 

The  court,  Pendleton,  president,  held,  that  a  mortgagor  of  per-  A  mortga- 

sonal  property  continuing  in  possession  is  not  evidence  of  fraud,  ^  ^hf'"" 

if  the  mortgage  be  upon  a  bona  fide  consideration,  and  be  dulv  possession 

recorded.  ^  & 

fraud. 


174  SLAVERY. 

14. 

THOMPSON  v.  PATTON.  Spring  T.  1824.  5  Little's  Rep.  74. 
S.  P.  Ross  v.  NORVELL,  1  Wash.  Rep.  14.  19.  ;  THOMP 
SON  v.  DAVENPORT,  1  Wash.  Rep.  126. 

Parol  evi-         The  complainant  alleged  in  his  bill,  that  he  borrowed  money  of 
the  defendant,  and  made  a  bill  of  sale  of  his  slave,  under  the  un 


to  prove       derstanding  and  agreement  that  the   slave  should  be  returned  in 

that  an  ab 

solute  bill     one  month  after.     The  answer  relied  on  the  bill  of  sale  being  ab- 

of  sale  for         -, 

a  slave  was   SOlllte. 

intended          And  tne  questiOn  was,  whether  the  bill  of  sale  for  the  slave  was 

tor  a  mort 

gage.  intended  to  be  a  sale,  or  whether  it  was  a  mortgage. 

Per  Cur.  Mills,  J.  The  question  must  rest  on  the  inquiry, 
whether,  under  the  circumstances  of  the  case,  the  parol  proof  of 
what  was  the  real  contract  between  the  parties,  or  whether  parol 
proof,  changing  the  absolute  transfer  into  a  mortgage,  is  admissible. 
Such  proof  has  been  admitted  to  enable  the  court  of  chancery  to  de 
cide  between  a  mortgage  and  conditional  sale  ;  and  instances  may 
not  be  wanting  of  such  proof  being  admitted  to  convert  absolute 
sales  into  mortgages  ;  but  whether  the  admission  of  such  proof 
can  be  sustained  upon  principle,  is  an  inquiry  worthy  of  our  at 
tention.  That  such  proof  is  admissible  in  cases  where  it  is  first 
shown  that  the  deed  or  writing  was  drawn  different  from  what 
was  intended,  by  mistake  or  fraud,  or  was  executed  under  circum 
stances  where  the  free  agency  of  the  grantor  was  controlled,  or 
where  it  is  usurious,  as  the  statute  against  usury  admits  of  such 
proof,  or  under  any  previous  circumstance  which  may  legitimately 
lay  a  foundation  for  or  open  the  door  to  such  testimony,  cannot 
be  doubted  ;  but  whether  it  is  admissible  in  every  case,  and  may 
be  used  to  add  to,  or  insert  a  condition  in  an  absolute  deed,  by 
showing  that  such  was  the  agreement  and  understanding  at  the 
time  of  its  execution,  but  not  inserted  in  the  writing,  is  a  differ 
ent  question.  Upon  examining  the  authorities  on  this  subject,  we 
find  them  not  consistent  with  each  other  ;  for  although  most  of 
them  recognize  the  general  principle  that  parol  evidence  is  not 
admissible  to  vary  the  written  contract,  yet  courts  have  made  so 
many  exceptions  to  the  rule,  that  they  have,  if  all  the  cases  are  to 
be  sustained,  pared  down  the  rule  itself  to  scarcely  the  rank  of  an 
exception.  Parol  evidence  in  this  case  cannot  be  admitted. 


OF  MORTGAGE  OF  SLAVES  175 

15. 
ENGLISH  v.  LANE,  January  T.  1825.     1  Porter's  Rep.  328. 

The  question  before  the  court  was,  whether  an  absolute  bill  of  An  abso- 
sale  of  a  number  of  negroes  could  be  explained  by  parol  evidence,  Saiemaybe 


and  proved  to  have  been  understood  by  the  parties,  and  intended 

by  them  to  be  operative  as  a  mortgage  of  the  negroes.  intended  a 

The  court,  Siffold,  J  ,  (after  referring  to  Parkhurst  v.  Van  ° 
Courtlandt,  1  Johns.  Chan.  Rep.  273.,  Vandervoort  v.  Col.  Ins. 
Com.,  2  Caines'  Rep.  155.,  Mumford  v.  M'Pherson,  1  Johns. 
Rep.  414.,  Watson  v.  Stackett's  Adm'rs,  6  Har.  &  Johns.  Rep. 
435.,  Ross  v.  Norvell,  1  Wash.  Rep.  14.,  Hatter  v,  Etenaud,  2 
Dess.  Rep.  570.,  Clark  v.  Henry,  2  Cowen's  Rep.  324.,)  held,  that 
it  was  a  general  rule,  that  a  written  contract  could  not  be  contra 
dicted,  varied,  or  explained  by  parol  ;  yet  an  absolute  deed  may 
be  shown,  by  parol  proof,  to  have  been  extended  to  operate  as  a 
mortgage  in  cases  of  fraud. 

16. 

HOUTON  v.  HOLLIDAY.     Jan.  T.  1812.     1  North  Carolina  Law 
Repository,  87. 

Henry  Taylor   by  his'  will,  dated   21st  November,   1799,   be-  ^;reiga 
queathed  to  his  daughter  Lucy,  a  negro  man,  Harry.     In  March,  pledged  to 
1800,  Taylor  borrowed  of  William  Holliday,  the  defendant,  one  paymentof 
hundred  pounds,  and  to  secure  the  payment,  executed  a  deed  of  rowed,  ^he 
sale  in  the  usual  form,  to  which  the  following  clause  was  added  :     pledgee  is 

liable  in  as- 

;<  The   conditions  of  the  above  bill  of  sale  is  such,  that  if  the  sumpsit  for 
said  Henry  Taylor,  his  heirs,  executors  or  administrators,  doth 
and  shall,  well  and  truly  pay  to  the  said  William  Holliday,  or  his 
heirs,  on  or  before  the  25th  day  of  December  next,  the  sum  of  thedebtthe 
two  hundred  dollars,  then  the  above  bill  of  sale  to  be  null  and  void,  smn'being 
otherwise  to  remain  in  full  force  until  the  said  Taylor  doth  pay  paid' 
the  sum  of  two  hundred  dollars.     Signed,  sealed,  and  delivered, 
the  day  and  year  first  above  written." 

"  HENRY  TAYLOR,  Seal. 
<;  Test.  Titus  Car." 

Taylor  died  in  April,  1800.  His  will  was  duly  proved,  and 
Micajah  Edwards,  the  executor  therein  named,  qualified  in  the 
same  month.  The  plaintiff  intermarried  with  the  legatee,  Lucy, 
in  April,  1801  ;  and  upon  the  marriage,  the  executor  of  Taylor 
assented  to  the  legacy  of  the  negro  Harry  to  the  plaintiff.  The 


176  SLAVERY. 

negro  Harry  remained  in  the  possession  of  the  defendant,  from 
March,  1800,  until  April,  1803,  and  is  worth  thirty  pounds  a  year. 
In  April,  1803,  the  plaintiff  paid  Holliday,  (for  which  the  negro 
was  pledged,)  two  hundred  dollars,  and  the  negro  was  delivered 
to  him.  He  then  demanded  satisfaction  for  the  services  of  the  ne 
gro,  which  the  defendant  refused  to  make.  Upon  this  case  the 
plaintiff  brings  his  action,  and  declares  ; 

1.  For  the  wages  of  the  negro,  from  the  death  of  Henry  Tay 
lor,  to  the  surrender  by  defendant  in  April,  1803. 

2.  For  many  had  and  received  by   defendant  to  plaintiff's  use, 
for  the  excess  of  what  was  paid  defendant  more  than  was  due  of 
the  sum  lent,  allowing  the  wages  of  the  negro  annually  to  diminish 
the  debt  and  interest.     The  jury,  under  the  charge  of  the   court, 
found  a  verdict  in  favor  of  the  plaintiff  for  the  sum  of  forty-eight 
pounds,  estimated  as  the  wages  of  the  negro  from  the  time  of 
plaintiff's  marriage  with  Lucy,  the  legatee,  until  the  delivery  in 
April,  1803,  deducting  the  interest  of  the  sum  borrowed  for  the 
same  term.      It  is  submitted  to  the  opinion  of  the  supreme  court, 
whether  the  said  verdict  shall  stand. 

Per  Cur.  Taylor,  Ch.  J.  It  has  been  the  uniform  practice  of 
the  courts  of  equity  in  this  state,  to  make  a  mortgagee  in  possession, 
account  for  the  rents  and  profits,  upon  a  bill  filed  for  redemption. 
This  is  a  necessary  consequence  of  the  principles  which  prevail  in 
those  courts  relative  to  a  mortgage,  which  is  considered  only  as  a 
security  for  money  lent,  and  the  mortgagee  a  trustee  of  the  mort 
gagor.  To  sanction  an  opposite  doctrine  even  in  the  cases  of 
pledges,  where  the  profits  exceed  the  interest  of  the  money  lent, 
would  be  to  furnish  facilities  for  the  evasion  of  the  statute  against 
usury,  almost  amounting  to  a  repeal  of  that  salutary  law.  Nothing 
can  come  more  completely  within  the  legal  notion  of  a  pledge, 
than  the  slave  held  by  Holliday  in  the  present  case  ;  for,  by  the 
very  terms  of  the  contract,  it  was  so  to  continue  until  the  money 
should  be  paid,  no  legal  property  vesting  in  Holliday,  who  had  only 
a  lien  upon  it  to  secure  his  debt.  All  the  profits,  therefore,  ex 
ceeding  the  interest  of  his  debt,  he  received  to  the  plaintiff's  use, 
and  cannot  conscientiously  withold.  Wherever  a  man  receives 
money  belonging  to  another,  without  any  valuable  consideration 
given,  the  law  implies  that  the  person  receiving,  promised  to  account 
for  it  to  the  true  owner  ;  and  the  breach  of  such  implied  underta 
king,  is  to  be  compensated  for  in  the  present  form  of  action,  which 
is,  according  to  Mr.  Justice  Blackstone,  "  a  very  extensive  and 


OF  MORTGAGE  OF  SLAVES.  Ml 

beneficial  remedy,  applicable  to  almost  every  case  where  a  person 
has  received  money,  which  ex  equo  et  bono,  he  ought  to  refund.' 
Nor  is  its  application  to  a  case  like  the  present  without  authority  from 
direct  adjudication.  The  case  of  Astley  v.  Reynolds,  in  Strange, 
915.,  furnishes  an  instance  of  a  man's  being  allowed  to  receive  the 
surplus  which  he  had  paid  beyond  legal  interest,  in  order  to  get 
possession  of  goods  which  he  had  pledged.  In  principle,  the  cases 
are  the  same  ;  the  only  thing  in  which  they  differ  is,  that  in  the  case 
before  us,  the  money  was  received  by  the  defendant  from  the  labor 
of  the  pledge  ;  in  the  other,  it  was  paid  by  the  plaintiffs.  We 
therefore  think  the  plaintiff  is  entitled  to  judgment. 

17. 

WOLF    v.   O'FARREL.   Nov.   T.   1812.     Constitutional    Court 

Rep.  151. 

This  was  a  motion  to  set  aside  a  nonsuit  ordered  on  the  ground  A  mortga- 
of  a  failure  of  necessary  evidence  to  maintain  the  action.     The  siave  may 


action  was  trover,  for  the  conversion  of  a  negro  slave. 

The  plaintiff's  claim  was  founded  on  an  instrument  of  writing:  tertheoon- 

.    .  .  dition  of 

containing  a  conditional  contract  of  sale  by  the  owner  of  the  slave,  the  mort- 
Snell,  to  the  plaintiff,  by  way  of  mortgage,   to  secure  the  pay-  broken. 
ment  of  a  sum  of  money  lent  by  the  plaintiff  to  Snell. 

By  the  terms  of  the  contract,  the  slave  was  to  remain  in  Snell's 
possession  until  the  day  of  payment,  when,  if  the  money  was  not 
paid,  with  interest,  it  should  be  lawful  for  the  plaintiff  to  take  pos 
session  of,  and  sell  the  slave  in  satisfaction  of  the  debt.  But  if 
the  debt  was  satisfied  at  the  day,  the  sale  should  be  void.  The 
writing  was  not  sealed,  but  only  signed  by  Snell.  It  was  stated 
that  the  debt  was  unsatisfied  after  the  day  appointed  for  the  pay 
ment  thereof  ;  and  the  plaintiff  contends,  that  by  the  legal  opera 
tion  of  the  contract,  the  mortgagee  became  proprietor  of  the  slave, 
liable  to  the  equity  of  redemption.  Upon  this  statement,  the 
paper  was  offered  in  evidence  to  prove  property  in  the  plaintiff, 
and  was  rejected  by  the  court  ;  in  consequence  of  which  the  non 
suit  was  ordered. 

JVoM,  J.  This  was  an  action  of  trover,  to  recover  a  negro  slave, 
tried  before  judge  Smith,  at  Orangeburgh.  The  plaintiff  had 
taken  a  mortgage  of  the  negro  in  question  from  one  Snell,  redeem 
able  upon  the  payment  of  a  certain  sum  of  money,  on  a  future 
day.  Snell  continued  in  the  possession  of  the  negro,  and  previous 
to  the  day  of  payment,  sold  him  to  the  defendant.  The  presiding 
23 


178  SLAVERY. 

judge  granted  a  nonsuit,  on  the  ground  that  the  mortgage  did  not 
vest  such  a  legal  right  in  the  plaintiff  as  entitled  him  to  maintain 
this  action.  I  am,  however,  of  opinion,  that  such  a  right  did  vest 
•  in  him,  and  therefore  the  nonsuit  ought  to  be  set  aside.  Every 
mortgage,  prima  facie,  conveys  a  legal  right  to  become  void,  on  a 
condition  subsequent,  which  it  is  incumbent  on  the  mortgagor  to 
prove.  Whether  the  want  of  delivery,  or  any  circumstances  atten 
ding  the  transaction,  afforded  such  presumption,  or  evidence  of 
fraud,  as  would  prevent  the  plaintiff  from  recovering  on  the  merits, 
should  have  been  submitted  to  the  jury,  but  could  not  have  been 
taken  advantage  of  by  way  of  nonsuit.  The  motion,  therefore, 
ought  to  be  granted. 

Colcock,  J.  On  the  argument  of  this  case  I  was  inclined  to 
think  that  the  opinion  of  the  court  below  was  correct,  and  that 
the  mortgage  should  not  have  been  given  in  evidence.  But,  on 
farther  consideration,  I  am  induced  to  think  a  mortgagee  may 
maintain  his  action  of  trover  against  a  third  person. 

In  England,  the  mortgagee  may  maintain  his  action  even  against 
the  mortgagor.     Ruch  v.  Hall,  Doug.  Rep.  22.  ;  Birch  v.  Wright, 
1  Term  Rep.  382.  3.     And  after  the  stat.  4th  of  Ann,  which  does 
away  the  necessity  of  attornment,  he  may  maintain  his  action  or 
distress  for  rent  against  a  tenant.    Mors  v.  Gallimore,  Doug.  Rep. 
279.     But  by  our  act  of  assembly,  the  right  of  the  mortgagee  to 
maintain  ejectment  against  the  mortgagor  is  taken  away.     Vol.  1. 
p.  65.     It  appears  to  me,  if  this  remedy  is  not  given,  that  the 
mortgages  of  personal  property  would  be  wholly  ineffectual.     In 
the  case  of  Atkinson  v.  Maling  and  others,  2  T.  Rep.  462.,  the 
ship,  which  was  recovered  by  the  plaintiff,  was  at  sea  when  mort 
gaged,  and,  of  course,  no  delivery  could  be  made.     It  seems  to  be 
conceded,  that  the  mortgagee  is  considered  as  being  in  possession 
from  the  execution  and  delivery  of  the  mortgage,  in  the  same  man 
ner  that  the  assigns  of  a  bankrupt  are  considered  to  be  in  possession 
of  the  goods  of  the  bankrupt  assignee,  and  may  maintain  trover  for 
the  recovery  of  them.    7  Term.  Rep.  312.     The  mortgagee  is  the 
absolute  and  true  owner.     3  C  ranch's  Rep.  140.  144.     Ryall  v. 
Rowles,  1  Ves.     I  am,  upon  these  authorities,  and  for  these  reasons 
of  opinion,  that  the  motion  be  granted. 

Say,  J.  Upon  the  argument  of  this  case,  I  was  rather  inclined 
to  think,  that  the  right  of  property  was  not  absolute  in  the  mort 
gagee  till  after  a  foreclosure,  or  a  sale  under  the  mortgage,  which 
in  this  country  has  been  considered  as  tantamount  to  a  foreclosure. 
But  upon  reconsidering  this  case,  I  am  now  very  clearly  of  opinion, 


OF  MORTGAGE  OF  SLAVES.  179 

that  upon  failure  of  payment  of  the  money,  or  performance  of  the 
condition  in  the  mortgage,  the  property  becomes  absolute  in  the 
mortgagee.  Before  the  failure  of  payment  of  the  money  mention 
ed  in  the  proviso,  the  legal  estate  is  still  in  the  mortgagor,  and  01  ly 
a  conditional  one  in  the  mortgagee.  But  after  failure  of  payment 
of  the  money,  it  is  no  longer  conditional  in  the  mortgagee,  but  ab 
solute  ;  and  is  gone  in  law  from  the  mortgagor  forever  ;  subject, 
however,  in  equity,  at  any  time  before  foreclosure,  to  the  right  of 
redemption,  upon  payment  of  principal  and  interest  of  the  mort 
gage  money.  2  Black.  Com.  158.;  3  Ba.  Abr.  Tit.  Mortgage,  635. 
Taking  it  then  for  granted,  that  the  property  is  absolute  in  the 
mortgagee  after  failure,  it  follows  as  a  natural  consequence,  that 
he  may  pursue  his  property  wheresoever  he  can  find  it ;  for  the 
right  of  property  gives  the  right  of  remedy,  and  he  may  take  it  out 
of  the  possession  of  the  mortgagor  himself,  or  out  of  the  possession 
of  any  other  person  who  may  have  it  by  transfer  or  sale,  if  he  can 
procure  such  possession  peaceably  ;  or,  upon  demand  and  refusal, 
may  maintain  an  action  of  trover  for  it ;  for  he  who  has  the  first 
mortgage  shall  prevail  over  all  other  mortgages  or  conveyances 
whatever.  Eq.  Cas.  Ab.  320.;  3  Bac.  Abr.  642. 

The  civil  law  is  very  full  upon  this  right  of  the  creditor,  to  pur 
sue  the  thing  mortgaged  in  the  hands  of  any  person  in  whose  pos 
session  it  may  be  found.  1  Domat,  343.  &c.  And  the  common 
law  in  this  respect  is  borrowed  from  the  civil  law.  It  has  been 
the  custom,  from  time  immemorial,  in  this  country,  for  the  mort 
gagee,  after  failure  of  payment  of  the  money  mentioned  in  the 
proviso,  to  seize  the  negroes,  or  other  chattels,  and,  after  duly 
advertising,  to  sell  them  towards  payment  and  satisfaction  of  the 
debt. 

And,  indeed,  this  custom  seems  to  have  given  rise  to  the  com 
mon  covenant  in  almost  every  mortgage  deed,  to  empower  the 
mortgagee  to  seize  and  sell,  and  to  return  the  overplus,  if  any,  to 
the  mortgagor,  which,  in  fact,  is  only  a  declaration  of  the  common 
law  right  which  would  exist  without  it.  And,  although  it  is  usual 
and  common  to  put  such  mortgages  into  the  hands  of  the  sheriff, 
to  seize  and  sell,  yet  he  only  acts  as  the  agent  of  the  mortgagees, 
and  not  in  his  official  capacity  of  sheriff.  This  custom,  however, 
is  a  very  commendable  one,  as  the  sheriff  of  a  district  is  always 
supposed  to  be  highly  trustworthy,  and  a  very  proper  person  to 
conduct  such  sales.  Upon  the  whole,  I  am  of  opinion  that  the 
non-suit  should  be  set  aside,  and  a  new  trial  granted.  The  other 
judges  concurred. 


180  SLAVERY. 

18. 
HOPKINS  v.  THOMPSON      June  T.  1835.     2  Porter's  Rep.  433. 

Detinue  •  Detinue  by  Hopkins,  the  mortgagee,  of  certain  slaves,  against 
lies  by  the  Thompson,  a  purchaser  under  an  execution  against  the  mortgagor. 
ofpersonal  The  court  charged  the  jury  that  an  action  of  detinue  was  not 
after'the'  sustainable  to  recover  possession  of  the  slaves  without  a  foreclosure 
time  of  re-  of  the  mortgage.  Judgment  for  defendant. 

has  expi-  Per  Cur.  Hitchcock,  J.  There  can  be  no  doubt  but  that  deti- 
rd  per-  nue  ^oes  ^e  to  recover  personal  property  mortgaged  after  the  time 
for  re(3emption  of  the  mortgage  has  expired.  By  the  mortgage, 
the  legal  estate,  as  between  mortgagor  and  mortgagee,  is  vested 
in  the  latter,  and  he  has  the  right  to  recover  the  possession  of  the 
property  for  the  purpose  of  subjecting  it  to  the  payment  of  his  debt  ; 
and  he  may  proceed  either  at  law  or  by  bill  in  equity. 

19. 
HART  v.  REEVES.     March  T.  1818.     5  Haywood's  Rep.  50. 

The  mort-  Held  by  the  court,  that  where  personal  property  (slaves)  were 
not  follow  mortgaged  and  left  with  the  mortgagor,  and  were  disposed  of  by 
mortgaged  mm  to  an  mnocent  purchaser,  the  mortgagee  could  not  follow 
e  m°rtga§e  not  having  been  registered  in  time. 


son. 


the  bona  fi 

ds    vendee  20. 


YOUNG  v.  FORGE  Y  et  al.    May  T.  1817.    4  Haywood's  Rep.  11. 

The  hirer  Held  by  the  court,  that  the  mortgagee,  or  hirer  of  slaves  is  in  the 
or  mortga-  p]ace  of  the  master  or  owner,  and  must  supply  necessaries,  includ- 
furnish  ne-  ing  medical  aid,  and  such  as  a  good  master  ought  to  furnish.  So,  also, 

cessariesto    , 

slaves.  during  a  temporary  sickness,  running  away,  and  other  casualties, 
which  the  absolute  owner  would  be  liable  to,  before  hiiing  or 
mortgaging,  the  temporary  hirer  must  sustain  the  loss. 


OF  DOWER  OF  SLAVES.  181 


(X.)  OF  DOWER  OF  SLAVES.* 

1. 

M'CARG'S  EX'R  v.  CALLICOTT.     March  T.  1811.     2  Munf.  Rep. 
501.  ;  AMBLER  AND  WIFE  v.  NORTON,  4  Hen.  &.  Munf.  23. 

Declaration  in  detinue  for  slave  by  the  executor  of  the  testator,  Where 

whose  widow  is  the  defendant.     The  widow  was  possessed  of  the  widow 

slaves,  as  her  thirds  of  the  slaves  of  her  former  husband  ;  and  slaves   as 

being  so  possessed,  the  plaintiff's  testator  married  her,  and  died.  ^^Te" 

And  the  question  was,  whether  a  widow  holding  slaves  in  dower,  cond   hus- 

and  marrying  again,  thereby  vests  them  in  her  second  husband,  so  slaves  be- 


that  upon  his  death  they  go  to  his  representatives,  or  whether  she 

shall  have  them  for  the  residue  of  her  life.     The  county  court  ^?nd  and 

gave  judgment  for  the  plaintiff;  and  on  appeal,  the  judgment  was  sentatives 

reversed  by  the  district  court,  and  the  plaintiff  appealed  to  this  death.  6 

court. 

The  president  delivered  the  opinion  of  the  court,  consisting  of 
judges  Fleming,  Roane,  Cabell  and  Coalter,  that  the  judgment  of 
the  district  court  be  reversed,  and  that  of  the  county  court 
affirmed. 


*  Slaves  are  subject  to  dower  in  all  the  states.  Not  only  are  they  subject  to  dower, 
but  the  widow's  interest  in  them  is  protected  by  statutory  provisions.  If  the  hus 
band  manumits  his  slaves,  whereby  creditors  and  the  dower  of  the  widow  are  affected, 
the  manumission  is  so  far  ineffectual,  that  the  manumitted  slaves  may  be  sold  for  a 
period,  and  the  proceeds  of  the  sale  applied  to  the  creditors  of  the  former  owner  and 
his  widow.  By  the  Rev.  Code  of  Virg.  vol.  1  p.  435.,  it  is  declared,  that  the  right  of 
the  widow  to  the  dower  of  slaves  emancipated  by  the  husband's  will,  are  saved  if  she 
renounce  under  the  will.  So,  also,  the  rights  of  the  creditors  of  the  person  emanci 
pating  are  saved.  And  by  the  Rev.  Code  of  Mississippi,  p.  385,  §  75.,  it  is  declared, 
that  slaves  emancipated  are  subject  to  the  right  of  dower  of  the  widow,  and  are  made 
liable  to  execution  for  the  previous  debts  of  the  owner.  And  similar  provisions  ex 
ist  in  the  statutes  of  the  other  states.  Civil  Code  of  Louisiana,  art,  190. ;  2  Litt.  and 
Swi.  1155.;'  2Brev.  Dig.  256.;  James'  Dig.  398.;  Toulmin's  Dig.  632.;  Prince's 
Dig.  457. 


182  SLAVERY. 


HYKES  &  WIFE  v.  WHITE'S  ADM'R.    April  T.  1832.   7  J.  J. 
Marshall's  Rep.  134. 

A  wife's  es-  Per  Cur.  Robertson,  Ch.  J.  The  only  question  presented  in 
tateindow-  ^'g  case  jS)  whether  slaves  possessed  in  right  of  dower  by  a  feme  at 
by  a  for-  the  time  of  her  marriage  survive  to  her,  or  constitute  (during  her 
band  on  life,  and  after  the  death  of  her  husband,  whom  she  married  whilst 
she  held  them  as  dower  in  a  former  husband's  estate)  a  fund  for 


in  her  bus-  the  payment  of  his  debts,  and  for  distribution  among  his  heirs. 

The  question  has  been  expressly  decided  by  this  court,  in  the 
case  of  Hawkins  v.  Craig  and  Wife,  6  Monroe's  Rep.  256.  In  that 
case  the  court  decided,  that  the  wife's  estate  in  slaves  held  as  dower 
from  a  former  husband,  at  the  time  of  her  marriage  with  a  suc 
ceeding  husband,  vests  absolutely  in  the  latter  during  their  joint 
lives  ;  and  in  the  event  of  her  surviving  him,  goes,  during  her  life, 
to  his  personal  representatives.  They  are  assets  in  the  hands  of 
the  husband's  representatives,  if  he  should  die  before  his  wife. 
Slaves  held  in  right  of  dower  vest  in  the  second  husband,  and  do  not 
survive  to  the  surviving  wife,  but  vest  in  the  representatives  of  the 
.second  husband  during  the  life  of  the  widow,  subject  only  to  her 
right  of  dower,  as  part  of  her  husband's  estate.  And  see  Fightmas- 
ter  et  al.  v.  Beasly,  7  J.  J.  Marshall's  Rep.  410.  The  court  said 
that  the  interest  of  a  wife  in  the  devise  of  a  slave  vests  absolutely 
in  the  husband. 

3. 

THRIFT  v.  HANNAH  et  al.  June  T.  1830.  2  Leigh's  Rep. 
300.  ;  S.  P.  GIVENS  v.  MANNS,  6  Munf.  Rep.  191.  ;  LEWIS 
v.  FULLERTON,  1  Rand's  15. 

And  her  Rachel  Magruder,  being  a  feme  sole,  on  the  25th  of  Nov.  1798, 

right  to      made  a  written  instrument  of  manumission,  to  take  effect  in  future, 

manumit  .        . 

them  is  of  certain  slaves,  Hannah,  Kate  and  others,  which  instrument  is 
attested  by  two  witnesses,  and  partly  proved  by  one  of  them,  and 
continued  for  further  proof  in  April,  1799.  In  November,  1799, 
Rachel  Magruder  married  Thrift,  having  the  negroes  in  her  pos 
session,  who  was  ignorant  of  the  deed  of  emancipation.  Thrift 
and  his  wife  moved  into  another  county,  taking  the  negroes  with 
them,  and  holding  them  as  slaves.  Mrs.  Magruder  died  in  1811. 
In  1819  the  instrument  of  emancipation  was  fully  proved.  The 
husband  holding  the  negroes  in  his  possession  as  slaves,  this  suit 


OF  THE  DIVISION  OF  SLAVES.  183 

was  commenced.  Verdict  for  plaintiffs  ;  and  Thrift  appealed  to  the 
Circuit  Court  of  Albermarle,  which  affirmed  the  judgment,  and  he 
appealed  to  this  court. 

The  court  held,  that  under  the  statute,  an  instrument  of  eman 
cipation  is  ineffectual  to  confer  freedom  till  full  probat  be  made, 
and  takes  effect  from  that  act.  And  in  this  case,  as  the  rights  of 
the  husband  attached  to  the  property  before  the  probat,  the  subse 
quent  full  probat  did  not  relate  back  and  divest  or  effect  those 
rights. 

Per  Cabell,  J.  By  the  marriage  of  Rachel  Magruder  in  this 
case,  she  ceased  to  be  the  owner  of  the  slaves,  which  thereby  be 
came  the  property  of  her  husband  ;  and  that  event  happened  be 
fore  the  proof  of  the  instrument ;  and,  of  course,  before  it  had 
taken  effect  as  an  instrument  of  emancipation,  it  could  not  take 
effect  afterwards,  since  none  but  the  owner  of  the  slaves  can  eman 
cipate  them. 


(XI.)  OF  THE  DIVISION   OF  SLAVES.* 

1. 

FITZHUGH  et  Ux.  v.  FOOT  et  al.      April  T.    1801.     3   Call's 

Rep.  13. 

Held  by  the   court,  that  an   equal  division  of  slaves,  in  number  Whenadi- 

J  vision  can- 

and  value  is  not  always  possible,  and  sometimes  improper,  when  not  be 

.  .  .          .    .,  made  with 

it  cannot  be  exactly  done  without  seperatmg  infant  children  from  out  separa- 
their  mothers,  which  humanity  forbids,  and  will  not  be  counte-  c£?drenmt 
nanced  in  a  court  of  equity  ;  so  that  a  compensation  for  excess  from  meir 

must,  in  such  cases,  be  made  and  received  in  money.  compensa 

tion  may 

~  be  made  in 

*•  money. 

JACKSON   v.   MACY.      Spring    T.    1808.     Hardin's   Rep.  582. 

Held  by  the  court,  that  in  a  suit  for  the  division  of  slaves,  the  court   will 
court  upon  a  proper  case  made  out,  may  order  the  sheriff  to  take  Sheriff 'to 
the  slaves  into  his  possession  and  hire  them  out.  hire  them 


out. 


*  By  the  Rev.  Code  of  Mississippi,  p.  50.,  slaves  descending  from  an  intestate  may 
be  sold  by  order  of  the  Orphan's  Court,  where  equal  division  cannot  be  made  ;  and 
persons  holding  life  estate  in  slaves,  or  guardians  for  infants  are  required  to  deliver  a 
list  of  slaves  to  the  Register  of  the  Orphan's  court,  and  also  the  increase.  Page  51. 
And  similar  provisions  exist  in  the  other  states  for  the  division  of  slaves. 


184  SLAVERY. 

3. 
SNEED  v.   EWING  &  WIFE.    April  T.  1831.    5  Marsh.  Rep. 

481. 

And  they  Held  by  the  court,  Robertson,  J.,  that  slaves  in  Kentucky  can- 
vided  e  ac-  not  ^e  carried  to,  and  held  in  a  state  where  slavery  is  not  permitted, 
cording  to  (jncliana  ;)  yet  slaves  in  this  state  which  belong  to  a  citizen  of  such 
the  own-  a  state,  on  his  death  will  be  distributed  according  to  the  law  of  dis- 
cil  tribution  of  personal  chattels  or  moveables  in  that  state. 


(XII.)  OF  REMAINDERS  IN  SLAVES.* 

1. 

HOLIDAY  v.  COLEMAN.     March  T.  1811.     2  Munf.  Rep.  162. 

The  court  The  court  held,  that  the  power  of  a  court  of  equity  to  rule  a 
cUscretfon!8  tenant  for  life  of  slaves,  or  other  personal  property,  to  give  security 
compel  the  tnat  faQ  property  shall  be  forthcoming  at  his  or  her  death,  is  to  be 
life  to  give  exercised,  not  as  a  matter  of  course,  but  of  sound  discretion,  ac- 

security  to 

the  remain-  cording  to  circumstances. 
derman. 

2. 

BANK'S  ADM'R  v.  MARKSBURY.     Spring  T.  1823.     3  Little's 

Rep.  275. 

Adeviseto       Held  by  the  court,  that  a  gift  of  slaves  by  a  father  to  his  chil- 

to   take   effeCt   &fter  tlie  death  °f  himself  and  wife>  and  not 


death  ofthe  until  then,  is  valid. 

devisro  is 

good.  __  ___ 


*  Slaves  are  considered  as  personal  property,  except  in  Louisiana,  and  under  stat 
ute  of  descents  in  Kentucky.  They  may  be  devised,  and  limited  in  the  same  manner 
as  other  personal  property.  A  remainder  may  be  limited  of  them.  Keating  v.  Rey 
nolds,  1  Bay's.  Rep.  80.  Even  after  an  absolute  gift  to  the  first  legatee.  Smith  v. 
Bell,  6  Peters'  Rep.  66.  And  see  Dott  v.  Cunnington,  1  Bay's  Rep.  453.,  as  to  when 
the  words,  "  heirs  ofthe  body,"  will  be  considered  words  of  limitation  or  words  pruchase  ; 
and  consequently,  when  the  contingency  will  be  too  remote.  The  contingency  must 
happen  within  a  life  or  lives  in  being,  and  twenty-one  years  and  a  few  months  after. 
Barnit's  Lessee  v.  Casey,  7  Cranch's  Rep.  456.  ;  Doe  v.  Walton,  2  B.  &  P.  324.  ; 
Thellusou  v.  Woodford,  1  N.  R»  357.;  Long  v.  Blackall,  7  T.  R.  109.;  Roe  v.  Jef 
frey^  T.  R.  589.  ;  Morgan  v.  Morgan,  5  Day's  Rep.  517.  ;  Anderson  v.  Jackson,  16 
John's  Rep.  382.;  Scott  v.  Price,  2  S.  &  R.  59.;  Dallam  v.  Dallam's  Lessee,  7  Har. 
&  Johns.  Rep.;  220.;  Ewings  v.  Reynolds  et  al.  3  Har.  &  Johns.  Rep.  144. 


OF  REMAINDER  IN  SLAVES.  185 

3. 

QUARLSS'  EXECUTOR  v.  QUARLES.    March  T.  1811.  2   Munf. 

Rep.  321. 

Held  by  the  court,  that  where  slaves  are  specifically  bequeathed  Of  si^eV*8 
to  a  child  when  he  or  she  shall  attain  the  age  of  twenty-one  years,  child  e\vhen 
or  shall  marry,  and  no  provision  is  made  expressly  for  maintenance  he  shall  ar- 
in  the  mean  time,  the  intermediate  profits  of  the  slaves,  if  not  other-  do  not  go  ' 


wise  disposed  of,  do  not  pass  by  a  general  residuary  clause,  but 

go  to  the  legatee  for  his  support  ;  and  he  is  entitled  to  the  profits  j?e,  hut  .to 

from  the  time  of  the  receipt  thereof  by  the  executor,  if  there  be  for  his  sup- 

no  good  cause  appearing  for  his  failure,  to  apply  the  principle  to  p 

the  use  of  the  legatee.     And  see  Medley  v.  Jones,  5  Munf.  Rep. 

93.  101. 

4. 

MEDLEY  v.  JONES.  March  T.  1816.  5  Munf.  Rep.  98. 

Held  by  the  court,  Roane,  J.,  that  a  person  entitled  to  a  remain-  ^Jf.^^11 
der  in  fee,  expectant  upon  a  life  estate  in  slaves,  taking  them  into  taking  pos- 
his  own  possession  to  prevent  the  tenant  for  life  from  carrying  slaves, 
them  out  of  the  state,  is  bound  to  account  for  and  pay  their  hire,  ^uni^to 

or  the  profits,  while  he  detains  them,  and  is  not  entitled,  upon  the  the  particu 

lar  estate 
ground  of  the  tenant's  refusing  to  give  bond  and  security  for  their  for  the 

production  at  the  expiration  of  the  life  estate  to  an  injunction,  to  ^ofi^. 
stay  proceedings  upon  a  judgment  against  him  for  such  hire  or 
profits. 

5. 

BANK'S  ADM'RS  v.  MARKSBERRY.  Spring  T.  1823.  3  Little's  Rep. 
275.  ;  S.  P.  SWING'S  HEIRS  v.  HANDLEY'S  HEIRS,  4  Little's 
Rep.  346. 

Samuel  Marksbevry,  by  deed,  for  the  consideration  of  love  and  ftme  soie  is 
affection,  granted  a  negro  wench  to  his  son  Samuel,  and  the  issue 


of  the  said  wench   to   his   daughter  Rachel.      After  his  decease,  version  or 

remainder, 
Rachel  intermarried  with   Banks,  and  had  children,  of  whom  the  and  mar- 

plaintiff  was  one.     Rachel   died,  and   afterwards,  the  donor,  her 
father,  died,  and  the  plaintiff,  one  of  the  children  of  Rachel,  took 
out  letters  of  administration  upon  her  estate,  and  commenced  this  lar  estate, 
suit.     The  court  held,  the  administrator  of  Rachel  had  no  right  to  the  slaves° 


recover;  that  the  property  in  the  issue  of  the   negro  Pen    vested 

in  the  husband  on  the  marriage  ;  and  the  plaintiff  appealed  to  this  or  of  them. 

court. 

24 


186  SLAVERY. 

Held  by  the  court,  that  slaves,  while  in  the  possession  of  the 
tenant  for  life  of  them,  are  not  choses  in  action  of  the  reversioner 
in  fee,  because  the  possession  of  tenant  for  life  is  not  adverse  to, 
-  but  consistent  with  his  title.  Rachel  had,  in  fact,  the  general,  and 
the  donor  only  a  special  property  in  the  slaves.  The  right  to  the 
slaves  in  question  survived  to  the  husband  of  Rachel,  and,  of  course, 
the  plaintiff  in  the  circuit  court  showed  no  right  to  maintain  the 
action.  From  an  attentive  examination  of  the  cases,  the  clear  re 
sult  from  all  of  them  seems  to  be,  that  if  a  feme  sole  be  entitled  to 
slaves  in  remainder  or  reversion,  and  marry  before  the  determina 
tion  of  the  particular  estate,  the  right  will  go  to  the  husband  or  the 
wife,  as  the  one  or  the  other  may  survive.  And  according  to  that 
doctrine,  it  is  obvious,  as  the  husband  survived  in  this  case,  the 
right  to  the  slaves  in  question  must  belong  to  him.  Judgment 
affirmed. 

6. 
BELL  &  WIFE  v.  HOGAN.  July  T.  1828.  1  Stewart's  Rep.  536. 

Where  the  Detinue  for  slaves.  Bell  and  wife  brought  an  action  to  recover 
to^The™38  twelve  negroes  under  the  will  of  Thomas  B.  Whitmell,  which  was 
daughter  jn  these  words  :  "  I  lend  to  my  daughter,  Elizabeth  West  Whitmell, 

forlife,  and  XT,..  ,      -         i 

if  she         six  negroes,  (naming  them,)  and  their  increase  during  her  natural 


fe  ;  and  if  my  daughter  should  leave  an  heir  or  heirs,  lawfully  be- 
dy,  then  to  gotten  of  her  body,  I  then  give  to  the  said  heir  or  heirs  so  begotten, 
for  ever;  the  said  six  negroes,  and  their  increase,  to  them  and  their  heirs 
want  of  forever.  And  for  want  of  such  heirs,  my  will  and  desire  is,  for 
then  tones'  tnc  above-named  six  negroes  and  their  increase  to  be  equally  di- 
tator'sfour  vidcd  among  my  four  children,  (naming  them,)  and  their  heirs  ibr- 

children  ; 

the  remain-   CVCT. 

children^       Elizabeth  married,  and  took  possession  of  the  six  negroes  ;  and 

not  too  re-  after  the  testator's  death  intermarried  with  the  defendant.     Two  of 

the    testator's   children  released  to  their  sister   Elizabeth.     The 

plaintiff's  wife  being  one  of  the  children,  Elizabeth,  the  devisee, 

died  without  ever  having  had  any  children. 

The  court  charged  the  jury,  that  the  bequest  to  Elizabeth  was 
a  limitation  over,  after  an  indefinite  failure  of  issue,  and  therefore 
void  ;  that  the  limitation  over  being  void,  the  first  legatee  took  an 
absolute  estate  ;  that  if  said  Elizabeth  was  entitled  only  to  a  life 
estate,  that  then,  at  her  death,  the  property  in  the  slaves  would  re 
vert  back,  and  sink  into  the  residium  of  the  testator's  estate  undis 
posed  of  by  his  will.  Plaintiffs  exccpted. 

Per  Cur.    Lipscomb,  Ch.  J.    It  is  a  rule  of  law,  that  a  limitation 


OF  REMAINDER  IN  SLAVES.  187 

over  to  another,  after  an  indefinite  failure  of  heirs,  is  bad,  because 
it  is  too  remote.  If  the  testator  in  the  case  under  consideration 
meant,  in  his  limitation  over  to  the  plaintiff,  and  her  brothers,  that 
it  should  not  take  effect  until  there  had  been  an  indefinite  failure 
of  heirs,  we  cannot  carry  his  intention  into  effect  ;  and  the  charge 
of  the  court  was  correct,  that  it  was  too  remote,  and  that  Elizabeth, 
the  first  taker,  took  an  absolute  estate.  But  if  we  are  authorized, 
from  the  terms  of  the  bequest,  to  believe  that  an  indefinite  failure 
of  heirs  was  not  meant,  and  that  by  "  failure  of  heirs,"  he  meant 
heirs  of  a  particular  kind,  then  his  intention  is  not  opposed  by  the 
rule  of  law,  and  should  be  carried  into  effect.  This  limitation  was  not 
too  remote,  because  it  was  to  take  effect,  if  at  all,  at  the  death  of  the 
first  taker.  And  the  court  referred  to  Peek  v.  Pagden,  2  D.  & 
E.  721.;  Porter  v.  Bradley,  3  D.  &  E.  143.;  Wilkinson  v.  South, 
7  D.  &  E.  551.;  Sheers  v.  Jeffries,  7  D.  &  E.  585. 

7. 
BETTY  v.  MOORE.    Spring  T.  1833.     1  Dana's  Rep.  235. 

Suit  for  freedom.     Betty  claimed  to  be  free  under  the  will  of  A  sale  of  a 
Jeremiah  Moore,  who  willed,  that  after  the  death  of  his  wife  Judith  ^conjjl 
she  should  be  free.     Frank  Moore  transferred  to  his  sister  Judith,  tionthatif 
Betty,  absolutely  if  she  had  children  ;  but  if  his  sister  died  without  ser  die 


children,  Betty  should  revert  to  him.     Judith  married  Jeremiah 
Moore,  the  testator,  and  died  without  issue.     The  court  instructed  revert  or 

pass  to  a 

the  jury,  that  upon  these  facts  Betty  had  no  right  to  freedom,  third  party, 
Verdict  and  judgment  for  defendant.  tion  is 

Per  Cur.  The  judgment  must  be  reversed.  At  common  law,  ^Jd'roper- 
a  gift  to  a  man  and  the  heirs  of  his  body  was  an  estate  upon  con-  ty  vests  in 
dition,  that  it  should  revert  to  the  donor,  if  the  donee  had  no  heirs  taker. 
of  his  body  ;  but  if  he  had,  that  it  should  remain  to  the  donee.  It 
was  therefore  called  a  fee  simple,  on  condition  that  he  had  issue. 
2  Black.  Com.  110.  The  statute  de  donis  afterwards  turned  this 
estate  upon  condition,  when  it  created  the  conveyance  of  real 
estate  into/ee  tail.  As  to  personalty,  it  still  remains  a  fee  on  con 
dition.  According  to  the  earlier  decisions,  while  chattels  were  of 
little  estimation,  a  grant  of  personalty  for  life  carried  with  it  the 
whole  estate.  But  the  law,  as  it  has  been  settled  in  modern  times, 
allows  the  limitation  of  a  remainder  after  a  life  estate  in  personalty. 
And  it  has  even  been  allowed,  by  executory  devise  or  conveyance 
in  trust,  to  create  what  is,  to  some  extent,  in  effect  the  same  as  a 
conditional  fee,  or  estate  tail,  in  such  property,  without  thereby  pass 
ing  the  absolute  and  entire  interest  to  the  first  taker.  This,  how- 


188  SLAVERY. 

ever,  is  expressly  confined  to  two  excepted  modes  of  creating  an 
estate  in  personalty.  For  it  is  well  settled,  that,  (with  the  excep 
tion  of  an  annuity,)  wherever  by  any  of  the  ordinary  modes  of 
-  conveyance,  an  estate  in  fee  conditional  or  fee  tail  is  granted  in 
or  out  personalty,  that  it  passes  the  whole  entire  to  the  grantee  or 
first  taker,  and  consequently,  all  further  limitations  or  reservations 
are  null  and  void.  Co.  Lilt.  20.  (a)  ;  Fearn.  on  Cont.  Rem.  460. 
463  ;  Roper  on  Leg.  393.  So  that,  properly  speaking,  there  can 
be  no  such  estate  in  personalty  as  a  fee  simple,  on  condition  of 
having  issue,  or  fee  tail,  but  all  such  estates,  when  attempted  to  he 
created,  carry  the  whole  interest. 

8. 

SMITH  v.  BELL  AND  WIFE.     July  T.  1827.    Martin  &  Yerger's 

Rep.  302. 

fiStmker6  The  testator  devised  as  follows  :  "  I  give  to  my  wife,  Elizabeth, 
takes  an  ab-  al]  my  personal  estate  whatsoever,  and  of  what  nature,  and  quality, 
tate,  a  sub-  and  kind  soever,  after  paying  my  debts,  legacies  and  funeral  ex- 
mitationLs  Penses  >  which  personal  estate  I  give  and  bequeath  unto  my  said 
void.  wife,  Elizabeth,  to,  and  for  her  own  use  and  benefit,  and  disposal 

absolutely.  The  remainder  of  said  estate,  after  her  decease,  to  be 
for  the  use  of  my  son  Jessee."  The  bill  charged,  that  Elizabeth 
married  the  defendant  Bell,  who  took  the  estate  consisting  princi 
pally  of  negroes.  Jessee,  the  son,  assigned  to  the  plaintiff  all  his 
claim  and  interest  in  the  personal  estate  of  his  father  after  the 
death  of  the  widow.  The  chancellor  dismissed  the  bill. 

Per  Cur.  Catron,  J.  The  decree  must  be  affirmed.  Where 
the  first  taker  has  an  absolute  estate  in  the  property  devised,  then 
the  limitation  over  is  void,  being  inconsistent  with  the  interest 
given  to  the  first  taker. 


9. 

HIGGINBOTHAM  v.  RucKER.    April    T.    1800.     2   Call's   Rep. 

313.  319. 

A  devise  to  Held  by  the  court,  that  where  a  father  makes  a  gift  of  slaves  to 
the  body  °  n*s  daughter,  and  the  heirs  of  her  body,  and  in  case  she  die  without 
issue,  that  is,  children  of  her  body,  the  said  slaves  shall  return  to 
the  grantor,  the  limitation  is  not  too  remote,  and  is  therefore  good. 
It  is  a  clear  principle,  that  a  limitation  of  personal  estate,  after  an 
indefinite  failure  of  issue,  is  void  as  tending  to  a  perpetuity  ;  but,  it 


OF  REMAINDER  IN  SLAVES.  189 

is  also  a  principle,  that  with  respect  to  personal  estate,  the  courts 
incline  to  lay  hold  of  any  words,  which  tend  to  restrict  the  gene 
rality  of  the  words  "dying  without  issue"  to  mean  "dying  without 
issue  living  at  the  death."  Thus  a  limitation  to  a  person  in  issue  for 
life,  after  dying  without  issue  is  good,  because  the  contingency  must 
happen,  if  at  all,  in  the  life  time  of  the  remainderman ;  and  the  limi 
tation  to  him  for  life,  restrains  the  generality  of  the  words,  "  dying 
without  issue  ;"  otherwise  the  limitation  over  would  be  void. 
See  Dunn  v.  Bray,  1  Call's  Rep.  338.  ;  Timberlake  and  Wife  v. 
Graves,  6  Munf.  Rep.  174. ;  Gresham  v.  Gresham  et  al.,  6  Munf. 
Rep.  187.  ;  Didlake  v.  Hooper,  Gilmer's  Rep.  194.  ;  Bradley  v. 
Mosby,  3  Call's  Rep.  50.  ;  Pleasants  v.  Pleasants,  2  Call's  Rep. 
320.  (2d  ed.  270.) 

10. 
DUNN  AND  WIFE  v.  BRAY.  Oct.  T.  1798.     1  Call's    Rep.  338. 

Held  by  the  court,  that  where  the  testator  devised  certain  slaves  So  where 
to  his  son  W.  "  and  his  heirs  for  ever,  but  if  he  should  die  and 
leave  no  issue,  then  to  his  son  C.,"  the  limitation  to  C.  is  good,  and 
not  too  remote.  See  Shaw  v.  Clements,  1  Call's  Rep.  429.  ever. 
And  in  the  case  of  Royal  v.  Eppes,  Adm'r  of  Royal,  2  Munf.  Rep. 
479.,  the  clause  in  the  will  was,  "  it  is  my  will  and  desire,  that 
in  case  "my  son  John  should  die  without  heir  of  his  body  lawfully 
begotten,  that  then,  and  in  that  case,  I  give  to  my  wife  Lucy,  and 
to  her  heirs  forever,  all  the  negroes  which  I  had  by  her,"  the  court 
held  it  was  a  good  executory  devise  in  favor  of  Lucy  ;  not  on  the 
ground,  that  the  word  "  then"  was  used  ;  or  the  word  "  heir,"  in 
the  singular  number  ;  but  because  the  bequest  was  of  the  negroes 
the  testator  had  by  her,  (saying  nothing  of  their  issue,)  and  this 
was  considered  as  evincing  that  he  did  not  intend  a  return  of  them, 
or  their  posterity,  to  his  wife,  at  any  remote  period  of  time. 

11. 
KEEN  et  al.  v.  WEST.     Spring  T.  1813.     3  Bibb's  Rep.  39. 

Held  by  the  court,  Owsley  J.,  that  where  A.  gives  slaves  to  B.  The   rules 
for  life,  with  remainder  to  the  children  of  B.  ;  the  remainder  is  moil  iaw  as 
good.    In  the  case  of  Higginbotham  v.  Rucker,  2  Call's  Rep.  313.,  J^/61-™111 
it  was  decided  that  the  gift  of  a  slave  to  one  for  life  with  remainder  to  slaves  pre- 
his  children,  was  a  good  limitation.    We  think,  by  the  rules  of  com 
mon  law,  as  they  are  recognized  and  known,  both  in  England  and 
in  this  country,  a  personal  chattel  may  be  granted  to  one  for  life, 
with  remainder  to  another,  either  by  will  or  deed. 


190  SLAVERY. 

12. 

JOHNSON  v.  SEVRER'S  EX'RS.   June  T.  1830.   4  Marshall's  Rep. 

141. 


Rule  of  re-       Hel(i  bv  tne  court,  Underwood,  J.,  that  the  amount  of  recovery 

tCheVrermainy-  by  a  remainderman»  against  the  vendee  of  the  owner   for  life, 

derman.      who  sells  the  fee  simple  of  the  negro,  is  not  the   criterion  of 

damages  in  a  suit  by  such  vendee  against  his  vendor  in  a  covenant 

of  title  ;  but  the  value  of  the  slave  at  the  time  he  is  demanded  by 

the  remainder  claimants,  after  termination  of  the  life  estate,  with 

interest  on  that  value,  and  costs  of  suit,  are  the  proper  measure  of 

the  warrantor's  responsibility. 


(XIII.)  INCAPACITY  OF  SLAVES. 

(A.)     To    MAKE    A    CONTRACT.* 
1. 

FREE  LUCY,  AND  FRANK.      Fall  T.  1826.     4  Monroe's  Rep. 
167. ;  EMMERSON  v.  HOWLAND,  1  Mason's  Rep.  45. 

The  court  held)  that  contracts  made  by  negroes  while  in  slavery, 
contract.      do  not  bind  them  after  they  are  liberated;  and,  consequently,  a 
plea  by  a  free  negro,  that  a  writing  sued  on  was  delivered  when 
he  was  a  slave,  is  good. 


*  One  general  principle  predominates  in  all  the  states,  and  in  the  British,  Spanish, 
and  Portuguese  West  Indies,  and  that  is,  that  a  slave  cannot  make  a  contract. 
1  Maryland  Rep.  561.  563.  Not  even  a  contract  of  matrimony,  Ibid.  Stephens  on 
Slavery,  &c.  p.  59.  60.  WraxalFs  Memoirs,  Vol.  2.  letter  21.  And  in  many  of  the 
states  mis  principle  has  become  part  of  the  statute  law.  See  James'  Dig.  385,  6.; 
Prince's  Dig.  453.;  2  Litt.  &  Swi.  Dig.  1159. ;  Haywood's  Manual,  525. ;  Mississippi 
Rev.  Code,  379.;  Martin's  Dig.  616.  And  it  is  stated  in  Goodwin  on  Slavery,  p.  43., 
that  a  slave  cannot  acquire  property.  And  the  same  principle  is  stated  in  "Bickell's 
West  Indies  as  they  are,"  p.  66.;  Niles'  Reg.  vol.  17.  p.  200;  ibid.  vol.  20.  p.  273. 


INCAPACITY  OF  SLAVES.  191 


(B.)    To  TAKE  BY    DEVISE,  DESCENT,  OR  PURCHASE. 

1. 

BYNTJM  v.  BOSTWICK.  June  T.  1812.  4  Dess.  Rep.  266. ;  S.  P. 
Dulany's  opinion,  1  Har.  &  M'Hen.  Rep.  561. 

Per  Cur.   Dessausseure.     The  question  is,  whether  the  devise  to   Cannot 

-  take  effect 

trustees,  m  trust  for  the  devisor's  negro  slave  Betsey  and  her  three  by  descent, 
children,  are  valid  devises,  and  can  take  effect.  du^e* 

The  condition  of  slaves  in  this  country  is  analogous  to  that  of  the 
slaves  of  the  ancient  Greeks  and  Romans,  and  not  that  of  the 
villeins  of  feudal  times.  They  are  generally  considered,  not  as 
persons,  but  as  things.  They  can  be  sold  or  transferred  as  goods, 
or  personal  estate,  they  are  held  to  be  pro  nulles,  pro  mortus.  By 
the  civil  law,  slaves  could  not  take  property,  by  descent  or  pur 
chase,*  and  I  apprehend  this  to  be  the  law  of  this  country.  Cooper's 
Just.  411.;  Taylor's  Element  of  Civ.  Law.  429. 

2. 

THOMAS  CUNNINGHAM'S  HEIRS  v.  THE  EXECUTORS  OF  THOMAS- 
CUNNINGHAM.  1801.  Cameron  &  Norwood's  North  Caro 
lina  Rep.  353. 

Thomas  Cunningham,  in  September,  1792,  duly  made  his  last  A    slave  * 

•n        j  ...  cannothold 

will  and  testament,  by  which,  amongst  other  things,  he  devised  as  property 

follows:  "It  is  my  will  and  desire,  that  five  feet  of  an  alley  be  by  devis€ 
left  from  Front  street  to  low  water  mark,  as  convenient  as  may  be 
to  after  bequeathed  lot,  then  I  will  and  desire  that  forty  feet  back 
including  the  house  where  Mr.  Potts  is  now  resident,  be,  at  the  ex 
piration  of  the   lease,   rented  out  for  the   maintenance  of  a  negro 
woman  of  mine,  named  Rachel,  and  the  maintenance  and  educa 
tion  of  her  three  mulatto  children,  named  Mary,  Ritfy,  and  Chris- 
sy,  and  the  child  of  which  she  is  now  pregnant."     After  devising 
part  of  a  lot  to  Edmund  Robeson,  the  will   proceeds  thus  :   "  and 
the  rest  and  residue  of  the  said  lot  to  be  rented  yearly  for  the  mainte- 

*  Slaves  cannot  take  property  by  devise,  descent,  or  purchase,  as  was  stated.  See 
ante,  p.  6.  It  is  a  general  principle,  and  prevailed  in  the  Spanish,  Portugese,  and 
British  West  Indies,  before  the  late  act  of  emancipation.  See  Stephens  on  Slavery, 
&c.  vol  1.  p.  46,  47. ;  17  Niles'  Reg.  p.  200.  And  see  a  pamphlet  published  by  Robert 
Walsh;  Jr.,  Philad.  ;  Holmes'  Annals,  No.  1. 


192  SLAVERY. 

nance  of  Rachel  and  her  three  children  already  named,  with  the 
child  of  which  she  is  now  pregnant;  with  all  the  rest  of  the  land  ly 
ing  between  Lee's  Creek  and  Deep  Inlet  Creek,  between  Rachel 
and  her  three  children,  share  and  share  alike,  to  them  and  their 
heirs. 

"  Item.  I  will  and  desire  that  my  negro  men,  Virgil  and  Quash, 
together  with  my  negro  woman  Tamer,  should  live  on  the  planta 
tion  where  I  now  reside,  on  Lee's  Creek,  to  work  for  the  mainte 
nance  of  Rachel's  children,  during  the  natural  life  of  said  negroes. 
Item.  I  will  and  desire  that  Rachel  and  her  children  should  be  set 
free  immediately  after  my  decease." 

The  defendant,  as  executor  of  Thomas  Cunningham,  the  testa 
tor,  took  possession  of  that  part  of  the  real  estate,  the  rents  of 
which  are  directed  by  the  will  to  be  applied  towards  the  mainte 
nance  and  education  of  the  negro  woman  Rachel  and  her  children. 
For  this  part  of  the  estate,  the  action  was  brought.  Rachel  and 
all  her  children,  before,  and  at  the  time  of  making  the  will,  and 
ever  since,  have  been  slaves. 

Hall,  J.  I  think  that  the  devise  in  question  is  void,  and  cannot 
take  effect.  The  maintenance  and  education  of  some  of  the  de 
visees,  is  what  the  testator  appears  to  have  been  anxious  for.  How 
can  it  be  effected  ?  They  are  slaves,  and  their  owners  have  a  right 
to  them  and  their  services ;  if  they  are  educated,  it  must  be  by  his 
permission,  and  if  it  is  attempted  without,  it  is  a  violation  of  his 
right.  If  this  property  had  been  conveyed  in  trust  for  the  same 
purpose,  a  performance  of  the  trust  could  not  be  compelled  in  a 
court  of  equity,  for  the  same  reason.  Admit  that  they  could 
bring  a  suit  to  recover  this  property,  could  they  have  a  right  to 
enjoy  it  ?  Suppose  the  owner  took  it  from  them,  would  they  have 
a  remedy  against  him  ?  They  certainly  would  not. 

Taylor,  J.  The  intention  of  the  testator  seems  plainly  to  have 
been,  to  transfer  the  beneficial  interest  in  the  lands,  to  Rachel  and 
her  children  ;  and  were  there  no  legal  impediments  to  the  effecting 
of  such  an  object,  I  should  think  the  words  made  use  of  equiva 
lent  to  an  express  devise  of  the  land.  But  it  is  indispensable  to  the 
validity  of  every  devise,  that  there  be  a  devisee  appointed  who  is 
competent  to  take.  Slaves  have  not  that  competence  ;  for  a  civil 
incapacity  results  from  the  nature  and  condition  of  slavery.  And 
it  would  be  a  solecism,  that  the  law  should  sanction  or  permit  the 
acquisition  of  property  by  those  from  whom  it  afterwards  with- 


INCAPACITY  OF  SLAVES.  193 

holds  that  protection  without  which  property  is  useless.  From  this 
principle  an  important  difference  arises  between  slavery,  as  it  is 
established  in  this  state,  and  the  condition  of  villeinage,  as  it  ex 
isted  in  England,  prior  to  the  statute  Car.  2.  A  villein  might  bring 
an  action  against  any  person  who  did  him  an  injury,  except  his 
lord  ;  and  even  against  him  in  some  particular  cases.  If,  there 
fore,  he  purchased  land,  although  the  lord  might  enter  upon  it, 
and  seize  it  to  his  own  use ;  yet  while  he  permitted  the  villein  to 
hold,  the  land  would  descend  to  the  children  of  the  latter,  in  a 
regular  course  of  descent,  and  the  law,  while  it  furnished  them 
with  a  remedy  against  any  who  should  disturb  their  possession, 
also  gave  them,  in  time,  a  title  by  prescription  against  their  lords. 
A  villein  might  also  lawfully  dispose  of  what  he  had  acquired,  if 
he  completed  the  transfer  before  his  lord  made  seizure. 

In  all  these  instances,  the  characteristics  of  slavery  are  differ 
ent  ;  for  a  slave  can  bring  no  action ;  he  can  neither  acquire  nor 
transfer  property,  by  descent  or  purchase  ;  nor  will  prescription 
avail  him,  to  assert  a  title  against  his  master.  The  devise  cannot, 
therefore,  in  the  present  case,  operate  any  thing. 

Judges  Johnson  and  Macy  concurred. 

Judgment  for  the  plaintiff. 


(C.)    To    BE    A    WITNESS.* 

1. 
GEONING  v.  DEVANA.     Feb.  T.  1831.     2  Bailey's  Rep.  192. 

The  court  were  unanimous  in  sustaining  the  decision  of  the  re-  ^e0ef  p^ 
corder  of  Charleston,  that  a  person  of  color  is  not  a  competent  or,  is  not  a 

witness    m 

witness,  m  any  case,  in  the  courts  of  record  in  this  state,  although  the   courts 
both  the  parties  to  the  suit  are  of  the  same  cla^s  with  himself.   Carolina!1 
And  the  court  go   farther,  and  say,  that  book  entries  made  by  a  even  where 

the  parties 

are    of  his 

'    own  class. 

*  The  court,  the  Hon.  Judge  Cranch,  in  the  case  of  the  United  States  v.  Minta 
Butler,  June  T.  1813.,  U.  S.  Court  Washington,  held,  that  a  slave  was  not  a  compe 
tent  witness  against  a  free  black  in  a  capital  case.  But  free  blacks,  unless  they  are  in 
a  state  of  servitude  by  law,  are  competent  witnesses  against  free  blacks.  And  his 
honor  decided,  in  Thomas  v.  Jameson,  MS.,  that  a  slave  could  not  be  a  witness  if  a 
free  mulatto  man  be  a  party.  But  that  a  manumitted  slave  was  a  good  witness  against 
a  mulatto.  U.  States  v.  Bartow. 

25 


194  SLAVERY. 

free  negro,  cannot  be  received  in  evidence  on  the  oath  of  a  white 
person  to  his  handwriting.  The  principal  being  excluded,  that 
which  is  accessory,  is  inadmissible. 

WHITE  v.  HELMES.  May  T.  1821.  1  M'Cord's  Rep.  430. 
A  free  ne-  Caveat  proceeding  upon  the  will  of  Daniel  Leger.  The  appel- 
competent  lants  introduced  a  negro  woman,  admitted  to  have  been  born  and 
bred  free,  in  order  to  testify  as  to  the  testator's  capacity  to  make 
a  will.  But  the  court  rejected  her  as  incompetent.  The  jury 
rtiite  per-  found  the  paper  a  valid  will. 

-4Via      nvo 


w 

sons  are 

concern 

ed.* 


*  It  may  be  laid  down  as  a  principle,  that  an  African  cannot  be  a  witness  in  a  case 
where  the  parties  are  white  persons.  See  the  cases  in  the  text.  In  many  of  the  states, 
legislative  provision  is  made  upon  the  subject.  In  Virginia,  by  an  act  of  Assembly  it  is 
declared,  "  any  negro  or  mulatto,  bond  or  free,  shall  be  a  good  witness  in  pleas  of  the 
commonwealth,  for  or  against  negroes  or  mulattoes,  bond  or  free  ;  or  in  civil  pleas 
where  free  negroes  or  mulattoes  shall  alone  be  parties,  and  in  no  other  cases  whatso 
ever.  1  Rev.  V.  C.  422.  3  Hen.  stat.  at  large,  298.  And  similar  provisions  are  made 
in  Mississippi.  See  Rev  Code,  372.;  Litt.  &  Swi,  1150.  So  in  Alabama,  Toulman's 
Dig.  627.,  and  in  Missouri,  2  Missouri  laws,  600.  In  Maryland,  see  the  act  of  1717. 
And  in  North  Carolina,  by  the  act  of  1777.  ch.  242.  And  in  South  Carolina.  2  Bre- 
vard's  Dig.  242.  But  the  rule  does  not  extend  to  cases  where  the  parties  are  negroes 
or  slaves.  A  slave  may  be  a  witness  against  a  slave,  and  even  against  a  free  person  of 
color  in  some  eases.  See,  in  addition  to  the  cases  in  the  text,  1  Rev.  Code  of  Virginia 
422.;  Prince's  Dig.  446.;  Hay  wood's  Manual  523,;  Maryland  laws  of  1751.  chap.  14 
§  4.  The  principle  of  exclusion  is  grounded  on  the  degraded  state  of  the  slave,  and 
the  interest  which  he  may  have  to  conceal  or  deny  the  truth.  This  rule  prevails 
in  all  countries  where  slavery  is  tolerated.  It  existed  in  the  British  West  Indies  before 
the  late  act  of  emancipation.  See  Njles'  Reg.  vol.  26.;  Stephens'  West  Indian  Slavery, 
&c.  p.  168.  And  prevails,  as  was  before  observed,  in  all  the  states  where  slavery 
exists. 

It  may  be  stated  as  a  principle,  that  in  all  countries  where  slavery  exists,  and  where 
the  rules  of  the  civil  law  have  been  adopted  ;  and  they  have  been  in  the  Spanish,  Por 
tuguese,  and  British  West  Indies  ;  and  in  the  several  states  of  the  United  States,  where 
it  is  permitted,  a  slave  cannot  be  a  witness  for  or  against  a  white  person  in  a  civil  or 
criminal  case.  Stephens  on  West  Indian  Slavery,  &c.  p.  168,  169.  Dulany's  opinion,  1 
liar.  &  M'  Hen.  Rep.  561.  This  principle  has  been  adopted  in  all  the  states,  even  where 
no  enactments  are  to  be  found  declaring  them  incompetent  witnesses.  It  may  be 
termed  the  common  law  or  custom,  on  account  of  the  universality  of  its  operation. 

In  some  of  the  states  the  evidence  or  testimony  of  free  Indians  and  slaves  is  admit 
ted,  without  oath,  for  or  against  any  other  slave  accused  of  any  crime  or  offence. 
This  is  specially  enacted  in  South  Carolina.  2  Brevard's  Dig.  232.;  and  the  same  re  - 
gulation  may  be  found  in  the  laws  of  Georgia,  James'  Dig.  In  Virginia,  1  Rev.  Code, 
422.  In  North  Carolina  &  Tennessee,  Haywood's  Manual,  522.  And  also  in  Ken 
tucky,  2  Litt.  &  Swi.  1150.;  and  Mississippi  Rev.  Code,  382.  And  see  Stroud's 
Sketch  of  Slavery  in  the  several  states,  p.  126, 


INCAPACITY  OF  SLAVES.  195 

Per  Cur.  Colcock,  J.  The  court  are  unanimously  of  opinion, 
that  the  witness  was  properly  rejected.  There  is  no  instance  in 
which  a  negro  has  been  permitted  to  give  evidence,  except  in  cases 
of  absolute  necessity  ;  nor  indeed  has  this  court  ever  recognized  the 
propriety  of  admitting  them  in  any  case  where  the  rights  of  white 
persons  are  concerned.  When  we  consider  the  degraded  state  in 
which  they  are  placed  by  the  laws  of  the  state,  and  the  ignorance 
in  which  most  of  them  are  reared,  it  would  be  unreasonable,  as 
well  as  impolitic,  to  lay  it  down  as  a  general  rule  that  they  were 
competent  witnesses. 

3. 

COMMONWEALTH  v.   OLDHAM.  Fall  T.  1833.     1  Dana's  Rep* 
466.  ;  WILLIAMS  v.  BLINCOE,  5  Little's  Rep.  171. 

The  question,  on  error  before  the  court,  was,  whether  a  free  A  free  man 
man  of  color  may,  by  his  own  oath,  require  a  white  man  to  give  ma/b^his 
security  to  keep  the  peace.  oath  re- 

The  court,  Robertson,  Ch.  J.,  after  referring  to  the  act  of  1798,   white  man 


2  Dig.  1150.,  which  declares,  that  "  no  negro  or  mulatto  shall  be  a 
witness,  except  in  cases  in  which  negroes  and  mulattoes  alone  shall 
be  parties  ;  and  2  Dig.  1251.,  observed,  that  the  enactment  ap 
plied  only  to  testimony  in  suits  pending  between  parties.  A  free 
man  of  color  may  sue  and  be  sued.  When  he  is  plaintiff  he  may 
swear  for  the  continuance  of  the  cause  ;  he  may  make  an  affidavit 
requiring  bail  ;  they  are  incident  to  his  freedom,  and  without  them 
he  would  be  virtually  disfranchised.  And  when  he  is  swearing 
to  facts  against  a  white  man  to  compel  him  to  keep  the  peace,  he 
is  not  a  "  witness,"  but  a  party  swearing  to  what  any  other  party 
may. 

4. 

PILIE  v.  LALANDE  et  al.  April  T.  1829.     19  Martin's  Louis 

iana  Rep.  648. 

Appeal  from  the  court  of  the  first  district. 

Per  Cur.  Porter,  J.  The  second  bill  of  exceptions  was  to  the  The  pre 
admission  of  a  witness  offered  by  the  plaintiff.  The  defendant  ob- 
jected  to  her,  on  the  ground  that  she  was  a  slave.  The  court  con- 
sidered  the  actual  enjoyment  of  freedom  by  the  witness,  as  prima  or,  is  con- 
fade  evidence  of  her  competency.  The  bill  of  exceptions  does  blacks,  ° 
not  state  whether  she  was  a  negro,  or  a  mulatto.  If  the  latter, 
the  presumption  was  in  favor  of  her  being  free,  and  the  court  did 
not  err  in  admitting  her. 


196  SLAVERY. 

5. 

GURNEE  v.  DESSEIS.     Aug.  T.  1806.     1  Johns.  Rep.  508. 

A  slave  On  the  certiorari,  the  error  assigned  was,  that  the  justice  had 
ted,  may  refused  to  admit  the  evidence  of  a  black  man,  as  to  facts  which 
which  oc-3  occurred  while  he  was  a  slave. 

cur.red.  Per  Cur.     A  free  black  man  is  a  competent  witness  to  prove 

was  a  slave,  facts  which  may  "have  happened  while  he  was  a  slave. 

6. 
EXECUTORS  OF  ROGERS  v.  BERRY,  May  T.  1813.     10  Johns. 

Rep.  132. 
A   slave          Trover  for  a  ne^ro  sirl.     The  plaintiff  offered  a  negro  man  as  a 

manumit 
ted  by  an  witness,  and  his  testimony  was  objected  to  on  the  ground  that  he 

be*?  wlf-  was  a  slave.     It  appeared  the  slave  had  belonged  to  the  testator, 
Sum  bailie  w^°  Devised  ^m  to  Walter,  his  son,  and  Walter  by  writing  had 
giftofman-  manumitted  him,  by  and  with  the  consent  of  his  guardian,  being 
-  himself  but  18  years  of  age  when  the  instrument  was  executed. 
The  defendant  still  objected,  on  the  ground  that  the  instrument  of 
coming  of  manumission,  being  executed  by  an  infant,  was  voidable,  and  the 
manumission,  therefore,  not  absolute,  but  revocable.     Verdict  for 
defendant,  and  motion  for  a  new  trial. 

Per  Cur.  The  manumission  by  the  infant  was  voidable  when 
he  should  come  of  age.  The  sale,  gift,  and  actual  delivery  of  a 
chattel  by  an  infant  is  voidable.  Perkins,  §12.  But,  in  the  mean 
time,  the  sale,  gift,  or  transfer,  is  valid,  and  the  interest  which 
passes,  or  is  released,  thereby  vests.  The  manumission  being 
valid,  though  defeasible  afterwards,  the  witness  was  not  at  the 
time  a  slave,  and  the  objection  to  his  competency  was  not  well 
taken.  He  must  be  a  slave  at  the  time,  to  come  within  the  dis 
qualification  prescribed  by  the  statute.  The  power  which  the  in 
fant  had  of  revoking  the  gift  on  coming  of  age,  would,  no  doubt, 
have  a  strong  and  undue  bias  on  the  mind  of  the  witness  ;  but  this 
would  be  an  objection  only.  He  could  not  be  set  aside  on  the 
ground  of  a  subsisting  slave.  New  trial  granted. 

7. 
THE  STATE  v.  FISHER,    July  T.  1805.     1  Har.  &  Johns.  Rep. 

750. 

Mulattoes.        Qn  the  trial  of  the  defendant  for  a  felony,  Dorsey,  Ch.  J.,  ad 
mitted  Rebecca  Syntha,  a  mulatto,  born  of  a  manumitted  negro 
as  witness.     The  defendant  was  convicted  ;  and  on  laying 


INCAPACITY  OF  SLAVES.  197 

the  case  before  the  court  of  appeals,  whether  the  testimony  of 
the  mulatto  woman  was  legally  received  or  not,  there  was  such  a 
diversity  of  opinion  among  the  judges,  that  no  decision  was  ever 
given. 

(D.)    To    BE    A    PARTY    IN    A    SUIT.* 
1. 

BERARD  v.  BERARD  et  al.     Feb.  T.  1836.    9  Louisiana  Rep. 

156. 

Per  Cur.  Martin,  J.  The  plaintiff  is  a  person  of  color,  and 
sues  her  aunt,  Marie  Louise  Berard,  for  the  purpose  of  establish-  in  judg 
ing  her  and  her  children's  claim  to  their  freedom.  The  defendant  any  other 
disavowed  any  title  to  the  plaintiff;  but  averred,  that  she  belonged  §j^n  to6as- 
to  her  late  sister,  Marie  Jeane  Berard,  and  that  she  descended  to  sert  his^ 
her  sister's  natural  children,  and  legal  heirs,  Celina  and  Antoine  he  cannot 
Garidel.  These  heirs  intervened,  and  claimed  the  plaintiff  and  her 
children  as  their  property,  in  the  right  of  their  deceased  mother. 


The  case  was  tried  by  a  jury,  who  found  a  verdict  for  the  inter-  him  as 
vening  party,  and  the  plaintiff  appealed. 

The  court  instructed  the  jury  that  the  intervenors  were  not 
bound  to  show  their  title.     The  plaintiff  excepted. 

On  a  full  consideration  of  the  case,  this  court  is  of  opinion,  that 
the  instructions  given  to  the  jury  by  the  district  judge,  was  correct. 


*  Slaves  are  themselves  considered  as  property,  and  can  neither  take,  possess,  or 
retain  any,  except  for  the  use  of  their  masters.  A  slave  cannot  be  a  party  to  a  suit,  ex 
cept  in  the  single  case  where  the  negro  is  held  as  a  slave,  and  he  claims  to  be  free. 
See  the  act  of  South  Carolina,  1740.;  2  Brevard's  Dig.  229.  And  the  act  of 
Georgia,  1770.  Prince's  Dig.  446. ;  Toulmau's  Dig.  632. ;  1  Missouri  Laws,  404.  And 
see  the  cases  abridged,  and  tit.  "  Suits  for  Freedom,"  post.  It  would  be  an  idle  form 
and  ceremony  to  make  a  slave  a  party  to  a  suit,  by  the  instrumentality  of  which  he 
could  recover  nothing ;  or  if  a  recovery  could  be  had,  the  instant  it  was  recovered 
would  belong  to  the  master.  The  slave  can  possess  nothing ;  he  can  hold  nothing. 
He  is,  therefore,  not  a  competent  party  to  a  suit.  And  the  same  rule  prevails  where- 
ever  slavery  is  tolerated,  whether  there  be  legislative  enactments  upon  the  subject  or 
not. 

In  all  cases  where  the  slave  alleges  he  is  free,  of  course  he  is  a  party.  He  may 
have  a  habeas  corpus,  and  if  there  be  a  false  return,  may  sue  upon  it.  Or  he  may  bring 
trespass  for  assault  and  battery,  and  false  imprisonment,  to  which  action,  the  defend 
ant,  to  justify  himself,  must  plead  the  negro  is  his  slave.  In  many  of  the  states  he 
may  proceed  by  petition  for  freedom.  Rebecca  Renny  v.  Mayfield,  4  Hayw.  Rep. 
165.  And  see  tit.  "  Suits  for  freedom,"  £ost. 


198  SLAVERY. 

A  slave  cannot  stand  in  judgment  for  any  other  purpose  than  to 
assert  his  freedom.  He  is  not  even  allowed  to  contest  the  title  of 
the  person  holding  or  claiming  him  as  a  slave. 

2. 
RUSK  v.  SOWERWINE.  June  T.  1810.  3  Har.  and  John's.  Rep.  97. 

Afreeblack       Replevin  for  a  slave.     The  plaintiff  offered  a  black  woman,  na- 
an  incom-  nied  Minta,  to  prove  that  the  slave  in  question  was  the  offspring  of 
nesThi^a  Hannan>  who  was  mortgaged  to  Daniel  Dulany.     The  defendant 
the6  Arties  obJecte(*  to  ner  testimony,  when  the  plaintiff  offered  testimony, 
are  free      that  the  witness  Minta,  and  the  late  Benjamin  Bannaker,  a  black 
da^60     '    man  of  Baltimore   county,  were   born  of  the    same  parents,   and 
were  reported  to  be  free  ;  and  that  their  mother  was  reported  to 
be  free,  and  to  be  descended  from  free  parentage,  and  did  enjoy 
freedom.     That  Bannaker  had  given  evidence    on  the  trial  be 
tween  free  white  persons,  though  no  objections  had  been  made. 
Nicholson,  Ch.  J.,  held,  Minta  was  an  incompetent  witness,  the 
plaintiff  and  defendant  being  free  white  Christian  persons.     The 
plaintiff  appealed,  and  the  cause  was  argued  before  Chase,  Ch.  J., 
Buchanan,  Gantt,  and  Earlt  J's.,  when  the  judgment  was  affirmed. 

3. 

DOROTHEE   v.   COQUILLON   et   al.  Jan.   T.   1829.    19   Martin's 
Louisiana  Rep.  350. 

Astatuiiber       Appeal  from  the  parish  court  of  the  parish  and  city  of  New 
tion  "or  re-  Orleans. 

lief  for  ill      per  Cur.  Martin,  J.  The  plaintiff,  a  free  woman  of  color,  corn- 
treatment. 

plained  that  her  child  was  directed  to  be  emancipated  at  the  age 

of  twenty-one,  by  the  will  of  her  mistress,  who  bequeathed  her 
services  in  the  mean  while  to  defendant's  daughter,  who  is  still  a 
minor  ;  that  the  will  requires  that  the  child  be  educated  in  such  a 
manner  as  may  enable  her  to  earn  her  livelihood,  when  free  ;  that 
no  care  of  her  education  is  taken,  and  she  is  treated  cruelly.  The 
prayer  of  the  petition  is,  that  the  child  be  declared  free  at  twenty- 
one,  and  in  the  mean  time  hired  out  by  the  sheriff.  The  answer 
denies  the  plaintiff's  capacity  to  sue  ;  that  she  has  any  cause  of 
action  ;  and  the  general  issue  is  pleaded.  The  petition  was  dis 
missed,  and  the  plaintiff  appealed.  The  plaintiff  cannot  sue  for 
her  minor  daughter,  in  a  case  in  which  the  latter  could  not  sue 
were  she  of  age.  The  daughter  is  a  statu  liber ;  and  as  such,  a 
slave  till  she  reaches  her  twenty-first  year.  Clef  des  loix  romaines 


INCAPACITY  OF  SLAVES.  199 

verbi  statu  liber.  As  a  slave  she  can  have  no  action,  except  to 
claim  or  prove  her  liberty.  Civ.  Code,  177.  Her  right  to  her 
freedom,  will  not  begin  till  she  is  twenty-one,  if  in  the  mean  time 
the  legatee  fails  to  perform  the  conditions  of  the  bequest,  and  the 
heir  of  the  testatrix  have  the  legacy  annulled  therefor,  the  statu 
liber  must  continue  a  slave  in  the  meanwhile,  and  her  services  be 
enjoyed  by  the  heir ;  so  that  the  object  of  the  suit,  as  far  as  it  con 
cerns  her,  is  relief  from  ill  treatment,  which  a  slave  cannot  sue  for. 
The  plaintiff  is  without  a  right  of  action.  Judgment  affirmed,  with 
costs. 


(E.)    To    CONTRACT    MATRIMONY. 
1. 

GIROD  v.  LEWIS.  May  T.  1819.  6  Martin's  Louisiana  Rep.  559. 

Per  Cur.  Mathews,  J.  The  only  question  in  this  case,  submit-  The  mar- 
ted  to  the  court,  is,  whether  the  marriage  of  slaves  produces  any  rjage  ?f  a 
of  the  civil  effects  resulting  from  such  a  contract  after  manumission,  its  civil  ef- 

T     .       .  fects  on  his 

It  is  clear,  that  slaves  have  no  legal  capacity  to  assent  to  any  con-  emancipa- 
tract.     With  the  consent  of  their  master,  they  may  marry,  and  ^n'e  be- 
their  moral  power  to  agree  to  such  a  contract  or  connection  as  fore- 
that  of  marriage  cannot  be  doubted  ;  but  whilst  in  a  state  of  slavery 
it  cannot  produce  any  civil  effect,  because   slaves  are  deprived  of 
all  civil  rights.     Emancipation  gives  to  the  slave  his  civil  rights, 
and  a  contract  of  marriage,  legal  and  valid  by  the  consent  of  the 
master,  and  moral  assent  of  the  slave,  from  the  moment  of  freedom, 
although  dormant  during  the  slavery,  produces  all  the  effects  which 
result  from  such  contract  among  free  persons. 

2. 

OVERSEERS  OF  MARBLETOWN  v.  OVERSEERS  OF  KINGSTON.  May 
T.  1822.     20  Johns.  Rep.  1. 

Per  Cur.  Plait,  J.  It  is  a  rule,  that  children  follow  the  condi-  Marriages, 
tion  of  the  mother,  where  both  parents  are  slaves,  and  a  fortiori,  it  ^f  the  par- 
ought  to  be  so  where  the  mother  is  free,  and  the  father  a  slave.  tl,es  is.  a, 

0  slave,  is  le- 

The  statute,  2  N.  R.  201.,  merely  legalises  the  marriage,  and  ren-  gal,  and  if 
ders  the  offspring  legitimate.   The  husband  is  not  emancipated,  nor  be  free,  the 
is  the  wife  enslaved  by  such  a  marriage.      I  am  inclined  to  listen  to  f^fow^the 
the  suggestions  of  policy  and  humanity,  which   I  think  dictate  the  condition 
rule,  that  the  children  of  such  marriages  shall  follow  the  condition  ther. 


200  SLAVERY. 

of  the  free  mother,  as  to  all  their  civil  rights  and  duties,  and  that 
she  shall  have  the  exclusive  custody  and  control  of  them  as  though 
their  father  was  dead. 


(XV.)  MASTERS'    AND    OTHERS'    LIABILITIES  FOR 
MALTREATING  THEIR  SLAVES.* 

1. 

MARKHAM  v.  CLOSE.  Sept.  T.  1831.     2  Louisiana  Rep.  581. 
Master  Held  by  the  court,  Porter,  J.,  that  the  infliction  of  cruel  punish- 

may     be 

convicted     ment  on  the  slave,  by  his  master,  is  a  criminal  offence,  and  must 
for    maf-    ^e  punished  by  a  criminal  prosecution,  and  not  before  a  civil  tribu- 


a^ter  conv*cti°nJ  tne  nne  is  to  be  levied  on  the  offender 
by  the  court  before  whom  the  conviction  takes  place. 

2. 

ALLAIN    v.  YOUNG.     Jan.  T.  1821.     9  Martin's  Louisiana  Rep. 

221. 

of  a  bad™  Per  Cur.  Mathew's,  J.  This  is  a  case  in  which  the  plaintiff 
if^urlued  see^s  to  recover  damages  to  the  value  of  a  slave,  alleged  to  have 
on  suspi-  been  killed  by  the  defendant.  The  case  was  submitted  to  a  jury, 
ony,  at-  who  found  for  the  latter,  and  from  the  judgment  rendered  on  the 
seizeVgim  verdict,  the  former  appealed.  The  evidence  in  the  case  shows 
kifiedhuhe  Pr°Perty  in  ti16  appellant,  and  the  killing  by  the  appellee.  The 
pursuit,  the  only  question  is,  whether  the  killing  took  place  under  circum- 
stances  that  justify  it.  The  testimony  which  comes^up  with  the 
record  is  multifarious  ;  but  from  it  we  gather  the  following  facts  : 


for  the  de-  _ 

fendant, 

who  killed 

him.  *  It  is  stated  in  Stroud's  Sketch  of  the  Laws  relating  to  slavery,  p.  35.,  "that  the 

master  may,  at  his  pleasure,  inflict  any  species  of  punishment  upon  the  person  of  his 
slave."  This  proposition,  so  repugnant  to  humanity,  is  equally  opposed  to  the  fact, 
and  also  to  the  law.  In  those  states  where  there  are  no  enactments  upon  the  subject, 
the  common  law  would  be  efficient  to  protect  the  slave.  Our  books  are  full  of  criminal 
prosecutions  for  cruelty  to  horses  and  other  animals.  And  the  common  law  remedy 
is  considered  effective  without  any  statutory  enactment.  And  if  the  slave  be  considered 
an  animal,  still  he  is  under  the  protection  of  the  law,  and  acts  of  inhumanity  and  cruelty 
to  him,  is  a  public  misdemeanor  ;  and  the  person  guilty  may  be  indicted  and  punished. 


MASTERS  AND  OTHERS  LIABILITIES.  201 

that  the  slave  was  in  the  habit  of  going  at  large  without  a  written 
permission  from  his  master ;  that  he  was  of  a  bad  character,  and 
was  killed  in  the  defendant's  attempt  to  arrest  him,  on  a  suspicion 
of  his  having  committed  a  felony,  whilst  he  was  endeavoring  to 
effect  his  escape,  having  attempted  to  seize  a  gun.  The  verdict  of 
the  jury  is  general,  and  decides  both  the  law  and  facts  of  the  case. 
It  is  the  opinion  of  a  majority  of  this  court,  that  the  verdict  and 
judgment  are  correct. 

3. 

JENNINGS   v.   FUNDEBURG.     Jan.  T.  1827.     4  M' Cord's  Rep. 

161. 

Trespass  for  killing  the  plaintiff's  slave.     The   defendant  with  Tb  excuse 
others  being  in  search  of  runaway  negroes,  surprised  them  in  their  forkEg 
camp,  and  fired  his  gun  towards  them  as  they  were  running  away,  a  slave>  °" 
to  induce  them  to  stop.      One  of  the  negroes,  however,  was  killed  ofaccident, 
by  a  random  shot.  pwto  &P~ 

The  court  below  thought  the  killing  accidental,  and  that  the  de 
fendant  ought  not  to  be  made  answerable  as  a  trespasser.     The  in-  outthe 

-  1,1.  least  fault 

jury  must  ensue  irom  some  unauthorized  intermedhng  with  pro-  on  the  part 
perty,  as  in  the  case  of  Wright  v.  Gray,  2  Bay's  Rep.  214.,  where 
the  defendant  prevailed  on  a  negro  boy,  without  the  consent  of  his 
master,  to  ride  a  race,  and  the  boy  was  thrown  from  his  horse  and 
killed.  But  when  one  is  lawfully  interfering  with  the  property  of 
another,  and  accidentally  injures  or  destroys  it,  he  is  no  trespasser, 
and  ought  not  to  be  answerable  for  the  value  of  the  property.  In 
this  case  the  defendant  was  engaged  in  a  lawful  and  meritorious  ser 
vice,  and  if  he  really  fired  his  gun  in  the  manner  stated,  it  was  an 
allowable  act.  Verdict  for  defendant,  and  the  plaintiff  appealed. 

Per  Cur.  Johnson,  J.  To  excuse  a  tresspass,  on  the  ground 
that  the  injury  done  was  the  consequence  of  an  accident,  it  is  not 
enough  that  the  party  did  not  intend  it,  but  it  must  appear  that  it 
was  unavoidable,  and  without  any  the  least  fault  on  his  part;  and  the 
books  go  so  far  as  to  say,  that,  if  by  any  extraordinary  degree  of 
circumspection,  even  greater  than  is  ordinarily  practised  in  the  af 
fairs  of  life,  he  might  have  guarded  against  it,  he  shall  be  liable. 
Which  is  illustrated  by  the  case  where  soldiers  were  exercising  with 
muskets,  and  in  so  doing,  the  defendant,  casualiter  et  per  infortunam 
et  contra  voluntatem  suam,  in  discharging  his  piece,  wounded  the 
plaintiff.  The  plea  was  held  bad  ;  for  a  man  shall  not  be  excused 
26 


202  SLAVERY. 

of  a  trespass,  except  it  be  committed  utterly  without  his  fault. 
Hamm.  N.   P.  67.     The  firing  of  the   defendant,  in  the    manner 
stated,  was  rash  and  incautious. 
New  trial  granted. 

4. 

RICHARDSON  v.  DUKES.     January  T.  1827.     4  M'Cord's  Rep. 
156.  ;  S.  P.  WALLIS  v.  FRAZIER,  2  N.  &  M'C.  516. 

The  pro-  Trespass  for  killing  the  plaintiff's  slave.  It  appeared  the  slave 
damages  was  stealing  potatoes  from  a  bank  near  the  defendant's  house.  The 
defendant  fired  upon  him  with  a  gun  loaded  with  buck  shot,  and 


value  of      killed  him.     The  jury  found  a  verdict  for  plaintiff  for  one  dollar. 

the  slave  to 

his  master    Motion  for  a  new  trial. 

of  Vis  l  The  Court.  JYott,  J.,  held,  there  must  be  a  new  trial  ;  that  the 
jury  ought  to  have  given  the  plaintiff  the  value  of  the  slave.  That 
if  the  jury  were  of  opinion  the  slave  was  of  bad  character,  some 
deduction  from  the  usual  price  ought  to  be  made,  but  the  plaintiff 
was  certainly  entitled  to  his  actual  damage  for  killing  his  slave. 
Where  property  is  in  question,  the  value  of  the  article,  as  nearly 
as  it  can  be  ascertained,  furnishes  a  rule  from  which  they  are  not 
at  liberty  to  depart.  The  rule  does  not  apply  to  actions  sounding 
in  damages  merely,  as  slander,  &c.  ;  there  the  jury  are  left  in  a 
great  measure  without  any  control  as  to  the  amount.  And  see 
Arthur  v.  Wells,  2  Const.  Rep.  314.  ;  Witsell  v.  Earnest,  1  Nott 
&  M'C.  182.  ;  Wise  v.  Freshly,  3  M'Cord's  Rep.  547. 

5. 

WITSELL  v.  EARNEST  AND  PARKER.  January  T.  1818. 
1  Nott  &  M  'Cord's  Rep.  182. 

Neither  The  defendants  went  to  the  plantation  of  Mrs.  Witsell  for  the 

statute  of  purpose  of  hunting  for  runaway  negroes  ;  there  being  many  in 
1740,  or  at  ^e  nejghborhood,  and  the  place  in  considerable  alarm.  As  they 
law,  can  a  approached  the  house  with  loaded  guns,  a  negro  ran  from  the  house, 
he  is  flying  or  near  the  house,  towards  a  swamp,  when  thev  fired  and  killed  him. 

C  K 

pursuers  The  }u^Se  chained  the  jury,  that  such  circumstances  might  exist 
be  killed;  bv  the  excitement  and  alarm  of  the  neighborhood  as  to  authorize 

and  if  he          J 

be,  the        the  killing  of  a  negro,  without  the  sanction  of  a  magistrate.     Ver- 
diet  for  defendants.     Motion  to  set  it  aside. 


tion?orSe       Per  Cur'     Co/cocfc,  J.     By  the  statute  of  1740,  any  white  man 

low.  may  apprehend,  and  moderately  correct,  any  slave  who  may  be 

found  out  of  the  plantation  at  which  he  is  employed  ;  and  if  the 


MASTERS    AND  OTHERS  LIABILITIES.  203 

slave  assaults  the  white  person,  he  may  be  killed ;  but  a  slave  who 
is  merely  flying  away  cannot  be  killed.  Nor  can  the  defendants 
be  justified  by  the  common  Jaw,  if  we  consider  the  negro  as  a  per 
son;  for  they  were  not  clothed  with  the  authority  of  the  law  to  ap. 
prehend  him  as  a  felon,  and  without  such  authority  he  could  not 
be  killed.  Motion  granted. 

6. 

THE  STATE  v.  E.  SMITH  AND  R.  SMITH.     Nov.  T.  1817.     1 
Nott  &  M'Cord's  Rep.  13. 

The  defendants  were  convicted  of  killing  a  negro,  under  the  act  The  penal- 
of  1740.  P.  L.  173.      The  clause  of  the  act  upon  which  the  indict-  7  unde' 

the  act  of 

ment  was  predicated,  is  in  these  words :   "  if  any  person  shall  on  sud-  1740,  for 
den  heat  of  passion,  or  by  undue  correction,  kill  his  own  slave,  or  negnf,  acts 
the  slave  of  any  other  person,  he  shall  forfeit  the  sum  of  three  Tr^and 
hundred   pounds    current   money."      Sentence   was   pronounced  not  on  the 
by  the  judge  upon  the  defendants,  "that  they  pay  three   hun 
dred  and  fifty   pounds  old  currency."     They  paid    the  fine  to 
the  clerk,  and  took  a  receipt.      After  the  court  had  adjourned,  the 
judge  ordered  the  clerk  to  amend  the  minutes  so  as  to  make  the 
judgment  be,  that  each  of  the  defendants  should  pay  the  above  sum. 
A  rule  was  taken  out  to  enforce  the  amended  sentence,  which 
was  made  absolute.     Motion  to  reverse  the  decision. 

Per  Cur.  Colcock,  J.  By  the  statute,  the  fine  is  affixed  to  the 
per»on,  and  not  to  the  offence ;  and  in  this  conviction,  each  of  the 
defendants  is  found  guilty  of  killing.  Many  of  our  acts  affix  the 
penalty  to  the  offence,  and  say  that  for  every  offence  the  fine  shall 
be  paid.  If  such  had  been  the  language  of  this  act,  the  construc 
tion  contended  for  by  the  prisoners'  counsel  must  have  followed  ; 
but  this  act  says,  every  person  shall  pay  for  the  offence,  and  not  that 
so  much  shall  be  paid  for  every  offence.  It  is  therefore  clear,  that 
each  defendant  is  bound  to  pay  the  sum  of  three  hundred  and  fifty 
pounds  currency ;  and  in  this  construction  my  brethren  concur. 

7. 
THE  STATE  v.  RAINES.     May  T.  1826.    3  M'Cord's  Rep.  533. 

The  prisoner  was  indicted  for  murder  :   "  for  that  the  said  Guy  An  indict- 
Raines,  on,  &c.  at,  &c.,  in  and  upon  a  certain  negro  man  slave, 
called  Isaac,  the  property  of  William  Gray,  then  and  there  being, 
then  and  there  did  make  an  assault,  and  the  said  negro  man  slave  should  spe- 
did  wilfully,  maliciously,  and  deliberately  murder,  contrary  to  the 


204  SLAVERY. 

criminal      act  of  the  general  assembly,  &c."     Verdict,  guilty  of  manslaughter, 

nature  and  . 

degree  of     and  motion  in  arrest  of  judgment. 

the  offence       p&r  ^      Colcock,  J.     The  indictment  is  defective.     It  is  nc- 

anci  me 

facts  and-  cessary  to  specify  on  its  face  the  criminal  nature  and  degree  of  the 

stances  offence  which  are  conclusions  of  law  from  the  facts ;    and  also  the 

dtr'thVde-  particular  facts  and  circumstances  which  render  the  defendant  guilty 

fendant  of  t^e  offence.     And  his  honor  gave  five  reasons  why  the  charge 

guilty. 

should  be  specific;  1st.  In  order  to  identify  the  charge  ;  least  the 
grand  jury  should  find  a  bill  for  one  offence,  and  the  defendant  be 
put  upon  his  trial  for  another,  without  authority.  2d.  That  the 
defendant's  conviction  or  acquittal  may  enure  to  his  subsequent 
protection,  should  he  again  be  questioned  on  the  same  grounds. 
3d.  To  warrant  the  court  in  granting  or  refusing  any  particular 
right  or  indulgence  which  the  defendant  claims  as  incident  to  the 
nature  of  the  case.  4th.  To  enable  the  defendant  to  prepare  for 
his  defence  in  particular  cases,  and  to  plead  in  all ;  or,  if  he 
prefer  it,  to  submit  to  the  court  by  demurrer,  whether  the  facts 
alleged,  supposing  them  to  be  true,  so  support  the  conclusion  in 
law,  as  to  render  it  necessary  for  him  to  make  any  answer  to  the 
charge.  5th,  Finally,  and  chiefly  to  enable  the  court,  looking  at 
the  record  after  conviction,  to  decide,  whether  the  facts  charged  are 
sufficient  to  support  a  conviction  of  a  particular  crime,  and  to 
warrant  their  judgment ;  and  also  in  some  instances  to  guide  them 
in  the  infliction  of  a  proportionate  measure  of  punishment  upon  the 
offender. 


(XV.)  OF  THE  TRIAL  AND  PUNISHMENT  OF  SLAVES. 

1. 

THE  STATE  v.  BEN,  a  slave.    Dec.  T.  1821.     1  Hawk's  North 
l74l?Cta0f  Carolina  Rep.  434. 

slave   tried 

fora  capital  Indictment  for  burglary,  tried  before  Badger,  J.  In  this  case, 
bTconvicN  tne  ^act  °f  burglary  was  proved  by  the  testimony  of  a  white  man, 
ed  on  the  a  witness,  above  suspicion  ;  but  _the  only  evidence  to  show  any 
of  a  slave,  agency  therein,  on  the  part  of  the  prisoner,  was  given  by  a  slave, 
corrobora-  and  that  evidence  was  direct  and  positive.  The  counsel  for  the 
nanFcir-5'  P1'^soner»  contended,  such  evidence  was  insufficient  to  convict  the 
cumstances.  prisoner,  because  not  supported  by  "pregnant  circumstances."  The 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  205 

court  instructed  the  jury,  that  whatever  rules  existed  on  the  sub 
ject,  were  rules  of  reason  and  prudence,  addressed  to  their  sound 
discretion  ;  but  that  there  was  no  positive  rule  of  law  which  should 
prevent  them,  if  they  believed  the  testimony  of  the  slave,  from  find 
ing  a  verdict  of  guilty  against  the  prisoner,  although  his  testimony 
was  not  supported  by  other  proof.  The  jury  found  the  prisoner 
guilty.  A  motion  for  a  new  trial  was  overruled,  and  sentence  of 
death  passed,  from  which  the  prisoner  appealed. 

Taylor.  Ch.  J.  I  have  not  been  able  to  ascertain  in  what  man 
ner,  slaves,  accused  of  capital  offences,  were  tried  before  the  year 
1741.  The  collections  of  the  laws  which  I  have  seen,  are  silent 
on  that  subject.  But  it  may  be  conjectured  that  the  county  courts 
entertained  jurisdiction. 

Among  the  very  few  events,  connected  with  the  early  settlement 
of  the  state,  which  history  has  condescended  to  notice,  that  of  an 
insurrection  of  the  slaves,  in  1738,  has  come  down  to  us;  and  I 
infer  from  ^he  period  of  its  occurrence,  that  it  suggested  the  rigor 
ous  and  detailed  system  of  police,  which  was  established  in  two  or 
three  years  afterwards.  Accustomed,  as  our  ancestors  were,  to 
the  usages  of  the  common  law,  and  its  solemnity  in  capital  trials, 
they  were  probably  impelled  by  a  sense  of  common  danger,  and 
the  duty  of  self-preservation,  to  vest  this  extraordinary  jurisdiction 
in  three  justices  and  four  freeholders,  who  might  be  hastily  col 
lected  at  the  court  house,  and  proceed  to  the  condemnation  and 
execution  of  a  slave,  without  indictment,  jury,  or  notice  to  the 
owner.  Had  such  a  special  jurisdiction,  so  wholly  out  of  the 
course  of  the  common  law,  been  created  without  any  specification 
of  the  sort  of  testimony  it  should  require,  it  is  to  be  apprehended 
that  very  slight  circumstances  would  have  led  to  a  conviction  ;  more 
especially  in  cases  of  conspiracy  and  insurrection,  trials  for  which 
have  in  our  own  day  produced  monstrous  injustice.  It  was  a  salu 
tary  caution,  to  the  triers,  not  to  infer  from  the  unusual  mode  of 
trial,  that  they  should  be  satisfied  with  weaker  evidence  than  the 
common  law  prescribes ;  and,  since  every  other  form  by  which 
the  law  aims  to  secure  an  impartial  trial,  was  withdrawn  from  slaves, 
the  legislature  prescribes  that  rather  more  evidence  shall  be  de- 
-manded  for  their  conviction,  than  is  in  general  necessary.  Rea 
soning  of  this  kind  occasioned,  as  I  think,  the  act  of  1741  to 
declare,  that  the  triers  should  "  receive  such  testimony  of  negroes, 
mulattoes,  or  Indians,  bond  or  free,  with  pregnant  circumstances, 
as  to  them  shall  seem  convincing  "  When  the  act  of  1793  ex- 


206  SLAVERY. 

tended  the  trial  by  jury  to  slaves,  I  strongly  incline  to  believe  that 
it  was  a  virtual  repeal  of  so  much  of  the  above  section  as  differs 
from  the  common  law  rule  of  evidence ;  and  that  conferring  the 
right  of  trial  by  jury  in  open  court,  does,  ipso  facto,  draw  after  it, 
as  an  incident,  the  common  law  principles  of  evidence,  and  all  the 
consequences  of  common  law  proceedings.  I  do  not,  however, 
rest  my  opinion  solely  on  this  ground.  It  is  to  be  observed,  that 
every  time  the  legislature  have  touched  this  subject  since  the  revo 
lution,  it  has  been  for  the  purpose  of  improving  the  condition  of 
slaves,  more  especially  in  admitting  them  to  the  benefit  of  an  im 
partial  trial  in  capital  cases. 

The  act  of  1806,  giving  the  superior  courts  exclusive  jurisdiction 
of  capital  crimes  committed  by  slaves,  extends  to  these  persons 
the  full  benefit  of  a  common  law  trial,  indictment,  the  benefit  of 
counsel  and  clergy,  and  the  right  of  challenge  for  cause  ;  withhold 
ing  only  the  peremptory  challenge,  which  could  scarcely  have  been 
of  any  use  to  them.  The  first  section  directs,  "  that  th^e  trial  shall 
be  conducted  in  the  same  manner,  and  under  the  same  rules,  regu 
lations,  and  restrictions,  as  trials  for  freemen  are  now  conducted." 
This,  it  seems  to  me,  is  full  authority  to  the  superior  courts  to  look 
at  the  common  law  for  the  rules  of  evidence,  modified  as  they  are 
in  relation  to  colored  persons,  by  the  act  of  1777  ;  and  I  cannot 
doubt,  that  the  first  section,  taken  together  with  the  repealing 
clause,  does  annul  the  48th  section  of  the  act  of  1741.  But  why 
should  the  act  of  1816,  which  does  the  legislature  so  much  honor, 
be  so  construed  as  to  place  slaves  on  a  better  footing,  in  respect  to 
evidence,  than  free  persons  ?  On  the  trial  of  the  latter  for  a  capi 
tal  crime,  sworn  to  only  by  one  witness,  the  jury  is  instructed  to 
judge  of  the  credibility  of  the  witness,  and,  if  they  believe  him,  that 
one  is  sufficient  to  convict,  without  any  pregnant  circumstances. 
Whereas,  if  the  rule  of  1741  is  still  in  force,  the  jury  must  be  told, 
that  however  well  satisfied  they  are  with  the  testimony  of  one  wit 
ness,  or  thoroughly  convinced  of  the  guilt  of  the  slave,  they  must 
nevertheless  acquit  him  in  the  absence  of  pregnant  circumstances; 
and  this,  notwithstanding  the  previous  finding  of  the  bill  by  a  grand 
jury,  and  the  examination  of  the  case  in  a  way  the  most  favorable 
to  the  discovery  of  truth.  If  the  grand  jury  cannot  find  the 
bill  upon  the  testimony  of  one  credible  witness,  without  pregnant 
circumstances,  nor  the  petit  jury  convict,  then  the  trial  is  not  con 
ducted  "in  the  same  manner,  and  under  the  same  rules,  regulations, 
and  restrictions,  as  trials  of  freemen  are  now  conducted."  If  criminal 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  207 

slaves  cannot  be  punished  for  crimes  which  are  usually  committed 
with  the  most  studied  secrecy,  but  through  a  species  of  evidence  not 
always  to  be  had,  and  which,  if  obtained,  could  not  deepen  the  con 
viction  arising  from  the  testimony  of  a  credible  witness,  it  is  to  be  ap 
prehended  that  a  mischievous  state  of  impunity  will  be  the  conse 
quence.  There  is  one  circumstance  tending  to  show  that  the  legisla 
ture  of  1802,  did  not  believe  the  provision  of  1741  was  in  force,  for 
in  the  act  "  to  prevent  conspiracies  and  insurrections  among  the 
slaves,"  the  rule  of  evidence  is  re-enacted  in  relation  to  these  crimes. 
Now,  the  act  of  1741,  made  it  applicable  not  only  to  these  offences, 
but  to  all  others  ;  and  if  it  were  not  repealed  by  the  act  of  1793, 
must  have  been  in  force  in  1802.  The  act  last  noticed  was  passed 
soon  after  some  disturbances  had  arisen  among  the  slaves  in  the 
lower  part  of  the  state,  and  the  clause  was  probably  re-enacted 
for  the  purpose  of  tempering  that  excess  which  public  excitement 
had  produced  in  the  trials  for  these  offences.  Upon  the  whole,  I 
think  the  conviction  is  right. 

Henderson,  J.     The  act  of  1741  erects  a  court  for  the  trial  of 
slaves,  composed  of  three  or  more  justices  of  the  peace,   and  four 
freeholders,  and  empowers  and  requires  them  to  take  for  evidence, 
the  confessions  of  the  offender,  the  oath  of  one  or  more  credible 
witnesses,  or  such  testimony  of  negroes,  mulattoes,  or  Indians,  bond 
or   free,   with   pregnant   circumstances,   as  to   them   shall   seem 
convincing,   without  the  solemnity  of  a  jury.      As  long  as  this 
court  remained,  under  any  modification,  the  testimony  prescribed 
by  the  act  remained  with  it.     But  when  the   trial  of  slaves  was 
transferred,  first  to  the  county  court,  by  the  act  of  1793,  and  then 
to  the  superior  court,  by  the  act  of  1816,  courts  proceeding  by 
known   and    established    rules  of   evidence,  the    evidence   pre 
scribed    to  the    court  established    by  the  act  of  1741,  was  not 
transferred  with  the  jurisdiction,  but  the  rules  established  in  the 
court  to   which   cognizance  of  the  offence   was   transferred  or 
given,  became   the  rule  of  decision  ;  and  it  is  not  at  all  like  the 
case  of  treason  or  perjury  to  which  it  was  attempted  to  liken  it, 
for  in   them  the  rules  of  evidence  are    attached  to  the  offence, 
and  will  follow  its  trial  to  any  court ;  but  the  rule  prescribed   to 
the  court,  established  by  the  act  of  1741,  is  attached  to  the  court ; 
and  is  confined  to  trials  in  that  court,  or  to  a  court  modified  from 
that.     I  lay  no  stress  on  the  words  in  the  act  of  1816,  "  rules,  regu 
lations,  and  restrictions ;"  it  is  most  probable  they  relate  only  to 
vhe  form  of  the  trial  ;  nor  shall  I  search  for  reasons  which  might 


208  SLAVERY. 

have  induced  the  legislature  to  require  pregnant  circumstances  in 
one  court,  and  not  in  the  other ;  or  why,  by  the  act  of  1802,  to 
punish  slaves  for  conspiring  to  rebel^  or  make  insurrection,  or  to 
commit  murder,  again  prescribes  the  same  rules  as  to  the  evidence  ; 
and  particularly  that  the  testimony  of  one  negro,  or  person  of 
color,  shall  not  be  deemed  conclusive  or  sufficient  to  convict, 
without  pregnant  circumstances)  thereby  strongly  implying,  that  it  was 
considered  that  the  rule  of  evidence  prescribed  to  the  court,  estab 
lished  by  the  act  of  1741,  was  no  longer  in  force  ;  but  I  know  in 
practice,  the  same  thing  is  often  for  greater  caution,  re-enacted. 
I  think  this  case  is  clear,  upon  the  grounds,  that  the  rule  as  to 
pregnant  circumstances  was  prescribed  to  another  court  than  the 
one  before  whicb  this  slave  was  tried  ;  tbat  tbe  latter  court,  was  in 
existence  before  the  transfer  of  cognizance  ;  tbat  at  the  time  of  the 
transfer  it  had  rules  of  its  own,  including  the  rules  of  evidence, 
by  which  it  is  ascertained  the  disputed  facts ;  that  by  the  act  of 
1777,  negroes,  Indians,  and  mulattoes  are  declared  to  be  compe 
tent  witnesses  against  each  other,  without  calling  in  the  aid  of  legis 
lative  intention,  arising  from  other  acts.  I  can  see  no  error  in 
the  judge's  charge,  and  no  grounds  for  a  new  trial.  Let  the  rule 
be  discharged. 

Hall,  J.  Dissentiente.  It  is  proper,  in  this  case,  to  take  a  view 
of  all  the  acts  of  assembly  wbich  relate  to  it.  The  act  passed  in  the 
year  1741,  ch.  24.  sec.  48.,  is  the  first.  It  declares,  that  "if  three 
or  more  negroes  or  other  slaves  shall,  at  anytime  hereafter,  consult, 
advise,  or  conspire,  to  rebel  or  make  insurrection,  or  shall  plot  or 
conspire  the  murther  of  any  person  whatsoever,  such  consulting, 
&c.  shall  be  adjudged  and  deemed  felony,  and  the  slaves  convicted 
thereof  shall  suffer  death."  It  then  declares,  "  that  three  justices 
and  four  freeholders,  owners  of  slaves,  are  empowered,  upon  oath, 
to  try  all  manner  of  crimes  and  offences  that  shall  be  committed 
by  any  slave,  at  the  court-house,  and  to  take  for  evidence  the  con 
fession  of  the  offender,  the  oath  of  one  or  more  credible  witnesses, 
or  such  testimony  of  negroes,  mulattoes,  or  Indians,  bond  or  free, 
with  pregnant  circumstances,  as  to  them  shall  be  convincing,  without 
the  solemnity  of  a  jury."  Under  this  act,  the  uncorroborated  tes 
timony  of  a  slave  would  not  be  sufficient  to  convict  a  slave  of  any 
crime.  I  do  not  think  that  the  act  of  1777,  ch.  2.  sec.  42.,  has 
any  bearing  upon  the  present  question.  That  act  only  incapaci 
tates  negroes,  mulattoes,  and  some  other  persons,  to  be  witnesses, 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  209 

except  against  each  other.  This  act  only  recognizes  their  compe 
tency,  as  the  act  of  '41  had  done,  but  it  is  silent  as  to  the  credi 
bility.  By  the  act  of  1793,  ch.  5.,  jurisdiction  of  all  offences  com 
mitted  by  slaves  is  transferred  to  the  county  courts,  and  to  a  jury 
of  good  and  lawful  men,  owners  of  slaves.  Nothing  is  said  in  this 
act  relative  either  to  their  competency  or  credibility,  tf  the  act  of 
1741  required  pregnant  circumstances  to  support  the  testimony  of 
a  slave  or  negro,  until  it  is  repealed,  it  is  still  required.  I  cannot  think 
that  transfer  of  jurisdiction  from  the  three  justices  and  four  free 
holders,  owners  of  slaves,  to  the  county  courts,  is,  ipso  facto,  a  repeal 
of  it.  The  act  of  1802,  ch.  17.,  makes  some  new  regulations  as  to 
the  offences  of  conspiracy  and  insurrection,  and  declares,  that  as  to 
them,  the  testimony  of  a  negro  or  person  of  color  shall  not  be 
deemed  sufficient  or  conclusive  to  convict  the  person  charged,  un 
less  the  same  shall  be  supported  by  such  pregnant  circumstances 
as  to  the  jury  shall  appear  convincing.  It  may  be  asked,  why  did 
the  legislature  interpose  this  guard  against  convictions  for  conspi 
racy,  &c.,  when  the  same  guard  was  interposed  by  the  act  of  1741 
against  conviction  of  crimes  of  every  description  1  The  question 
I  cannot  answer  ;  but  I  feel  myself  at  liberty  to  say,  that  re-enact 
ing  in  1802,  what  was  enacted  in  1741,  is  no  repeal  of  the  first  act. 
The  next  law  on  this  subject  was  passed  in  the  year  1816.  New 
Revisal,  ch.  912.  This  act  transfers  to  the  superior  court  exclu 
sive  jurisdiction  in  all  cases  where  slaves  shall  be  charged  with  the 
commission  of  any  offence,  the  punishment  whereof  may  extend 
to  life,  limb,  or  member,  and  under  the  same  rules,  regulations, 
and  restrictions,  as  in  trial  of  freemen  for  like  offences.  The  lat 
ter  expression,  1  think,  relates  to  the  mode  of  conducting  the  trial. 
It  is  altogether  silent,  both  as  to  the  competency  and  credibility  of 
witnesses :  that  as  I  apprehend,  was  left  to  the  law  as  it  then  stood  ; 
I  mean  the  law  of  1741.  This  case  has  been  likened  to  the  cases 
of  high  treason  and  perjury;  and  I  think  not  improperly.  In  each 
of  those  cases,  two  witnesses  were  necessary  to  a  conviction  ;  and 
I  think  it  would  be  required,  until  altered,  upon  a  transfer  of  juris 
diction  of  those  offences  from  one  tribunal  to  another.  The  only 
want  of  resemblance  between  those  cases  and  the  one  before 
us  is,  that  in  those  cases,  and  those  only,  the  testimony  of  one  wit 
ness  is  not  sufficient  to  a  conviction  in  the  case  of  fredom  ;  and  the 
testimony  of  one  witness,  I  mean  that  of  a  slave,  without  pregnant 
circumstances,  is  not  sufficient  to  convict  slaves  of  any  crime. 
It  has  been  argued,  that  when  the  superior  courts  acquired  juris- 
27 


210  SLAVERY. 

diction  in  these  cases,  the  rules  of  evidence  attached  to  them,  as  in 
trials  of  free  persons.  I  cannot  come  to  the  conclusion,  that  a 
positive  law  should  be  repealed  by  subsequent  laws,  in  which  so 
little  intimation  is  given  of  legislative  will,  that  they  should  have 
that  effect.  That  the  policy  of  the  law  of  1741  was  founded  on  a 
sense  of  the  degraded  state  in  which  those  unhappy  beings  existed, 
no  doubt,  will  be  ceded.  Being  slaves,  they  had  no  will  of  then- 
own,  and  a  humane  policy  forbade  that  the  life  of  a  human  being, 
(one  of  themselves)  should  be  taken  away  upon  testimony  coming 
from  them,  unless  some  circumstances  appeared  in  aid  of  that  tes 
timony.  If  this  was  a  just  policy,  I  am  not  aware,  if  we  were  now 
to  examine  their  condition,  that  any  thing  would  be  discovered  so 
much  more  favorable  to  the  cause  of  truth,  as  to  require  a  repeal 
of  the  laws  now  in  force,  by  the  legislature,  or  a  construction  of 
them  by  the  courts,  tending  to  the  same  end.  My  opinion,  there 
fore,  is,  that  the  rule  for  a  new  trial  should  be  made  absolute. 

2. 

STATE  v.  REED.    June    T.    1823.     2  Hawk's   North    Carolina 

Rep.  454. 

An  indict-  This  was  an  indictment  for  the  murder  of  a  slave,  which  con- 
the'niurd  c^u^ed  at  common  law.  The  prisoner  was  found  guilty,  and  moved 
of  a  slave,  in  arrest,  because  of  the  insufficiency  of  the  indictment.  The  mo- 
ciudes  at  tion  was  overruled,  and  sentence  passed,  from  which  the  prisoner 


good.  Taylor,  Ch.  J.     I  think  there  was  no  necessity  to  conclude  the 

indictment  against  the  form  of  the  statute,  for  a  law  of  paramount 
obligation  to  the  statute  was  violated  by  the  offence.  Common  law, 
founded  upon  the  law  of  nature,  and  confirmed  by  revelation. 
The  opinion  I  delivered  on  the  State  v.  Boon  remains  unchanged, 
to  which,  and  the  effect  of  the  act  of  1827,  as  stated  in  the  State 
v.  Tackett,  (1  Hawk's  Rep.  2  1C.)  I  beg  leave  to  refer,  as  containing 
the  reasons  wherefore,  in  this  case,  there  ought  to  be  judgment  for 
the  state. 

Henderson,  J.  This  record  presents  the  question,  is  the  killing 
of  a  slave,  at  this  day,  a  statute  or  common  law  offence  ?  And  if 
a  common  law  offence,  what  punishment  is  affixed  to  the  act 
charged  in  his  record  ?  Homicide  is  the  killing  any  reas  onable 
creature.  Murder  is  the  killing  any  reasonable  creature,  within 
the  protection  of  the  law,  with  malice  prepense,  that  is,  with  a  de 
sign  and  without  excuse.  That  a  slave  is  a  reasonable  creature, 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  211 

or  more  properly,  a  human  being,  is  not,  I  suppose,  denied.  But 
it  is  said,  that  being  property,  he  is  not  within  the  protection  of  the 
law,  and,  therefore,  the  law  requires  not  the  manner  of  his  death  ; 
that  the  owner  alone  is  interested,  and  the  state  no  more  con 
cerned,  independently  of  the  acts  of  the  legislature  on  that  subject, 
than  in  the  death  of  a  horse.  This  is  an  argument,  the  force  of  which 
I  cannot  feel,  and  leads  to  consequences  abhorent  to  my  nature  : 
yet  if  it  be  the  law  of  the  land,  it  must  be  so  pronounced.  I  dis 
claim  all  rules  or  laws  in  investigating  this  question  but  the  com 
mon  law  of  England,  as  brought  to  this  country  by  our  forefathers, 
when  they  emigrated  hither,  and  as  adopted  by  them,  and  as  modi 
fied  by  various  declarations  of  the  legislature  since,  so  as  to  justify 
the  foregoing  definition.  If, therefore,  a  slave  is  a  reasonable  crea 
ture,  within  the  protection  of  the  law,  the  killing  a  slave  with  ma 
lice  prepense,  is  murder  by  the  common  law.  With  the  services 
and  labors  of  the  slave  the  law  has  nothing  to  do;  they  are  the 
masters  by  the  law ;  the  government  and  control  of  them  belong 
exclusively  to  him.  Nor  will  the  law  interfere  upon  the  ground 
that  the  state's  rights,  and  not  the  master's,  have  been  violated. 

In  establishing  slavery,  then,  the  law  vested  in  the  master  the  ab 
solute  and  uncontrolled  right  to  the  services  of  the  slave,  and  the 
means  of  enforcing  these  services,  follow  as  necessary  conse 
quences  ;  nor  will  the  law  weigh  with  the  most  scrupulous  nicety, 
his  acts  in  relation  thereto ;  but  the  life  of  a  slave  being  noways 
necessary  to  be  placed  in  the  power  of  the  owner  for  the  full  en 
joyment  of  his  services,  the  law  takes  care  of  that,  and  with  me  it 
has  no  weight,  to  show  that  by  the  laws  of  ancient  Rome  or  mod 
ern  Turkey,  an  absolute  power  is  given  to  the  master  over  the  life 
of  his  slave.  I  answer,  these  are  not  the  laws  of  our  country, 
nor  the  model  from  which  they  were  taken  ;  it  is  abhorrent  to  the 
hearts  of  all  those  who  have  felt  the  influence  of  the  mild  precepts 
of  Christianity  ;  and  if  it  is  said,  that  no  law  is  produced  to  show 
that  such  is  the  state  of  slavery  in  our  land,  I  call  on  them  to  show 
the  law  by  which  the  life  of  a  slave  is  placed  at  the  disposal  of  his 
master.  In  addition,  I  must  say,  that  if  it  is  not  murder,  it  is  no 
offence,  not  even  a  bare  trespass.  Nor  do  I  think  that  any  thing 
should  be  drawn  from  the  various  acts  of  the  legislature  on  the 
subject.  Legislative  exposition  is  good  while  the  system  of  law 
thus  expounded  is  in  force ;  but  when  the  whole  system  is  aban 
doned,  as  is  done  by  the  act  of  1817,  exposition  should  be  laid 
aside.  But  if  the  legislative  exposition  is  to  have  weight,  the  last 


212  SLAVERY. 

should  be  received,  and  the  act  last  mentioned  to  speak  the  lan 
guage  of  declaration,  and  not  that  of  enactment.  But  it  is  not  ad 
mitted  that  the  acts  prior  to  the  act  of  1817,  are  by  any  means  a 
clear  legislative  declaration,  that  it  was  no  offence  to  kill  a  slave 
anterior  to  any  statutory  provision.  The  first  enactment  that  we 
have  on  the  subject,  is  a  simple  declaration,  that  if  any  person 
shall  maliciously  kill  a  slave,  he  shall  suffer  imprisonment.  From 
this  we  are  not  absolutely  to  conclude,  that  the  legislature  thought 
that  before  that  time  it  was  no  offence  ;  it  is  quite  possible  that 
juries  had  not  applied  the  principles  of  the  common  law  in  their 
purity  to  the  offence  ;  for  we  see  the  spirit  of  the  times  by  the  le 
gislative  act ;  but  that  spirit  is  happily  no  more.  I  would  mention, 
as  an  additional  argument,  that  if  the  contrary  exposition  of  the 
law  is  correct,  then  the  life  of  a  slave  is  at  the  mercy  of  any  one, 
even  a  vagabond  ;  and  I  would  ask,  what  law  is  it  that  punishes,  at 
this  day,  the  most  wanton  and  cruel  dismemberment  of  a  slave, 
by  severing  a  limh  from  his  body,  if  life  should  be  spared  1  There 
is  no  statute  on  the  subject ;  it  is  the  common  law  cut  down,  it  is 
true,  by  statute  or  custom,  so  as  to  tolerate  slavery,  yielding  to  the 
owner  the  services  of  the  slave,  and  any  right  incident  thereto,  as 
necessary  for  its  full  enjoyment,  but  protecting  the  life  and  limbs 
of  the  human  being  ;  and  in  these  particulars,  it  does  not  admit 
that  he  is  without  the  protection  of  the  law.  I  think,  therefore, 
that  judgment  of  death  should  be  pronounced  againt  the  prisoner. 
Hall,  J.  Dissentiente.  I  dissent  from  the  opinion  of  the  court 
below  in  this  case.  Most  of  the  reasons  for  this  dissent  are  to  be 
found  in  the  case  of  the  State  v.  Boon,  Taylor's  Rep.  252.  And 
it  is  unnecessary  here  to  repeat  them. 

3. 

THE  STATE  v.  JIM,  a  negro  slave.  Dec.  T.  1826.  1  Devereaux's 
North  Carolina  Rep.  142. 

A  slave  on       The  defendant  was  indicted  for  an  assault,  with  an  intent  to 
capltalf°fe*  commit  a  rape,  on  the  body  of  a  white  female.     In  making  up  the 

lony  is  en 
titled  to   a   " 

slave  own-       *  Tnere  exists  a  considerable  diversity  iu  the  form  of  the  courts  or  tribunals  before 
era.*  whom  negroes  and  slaves  are  to  be  tried  for  crimes.   The  legislative  enactments  have 

for  their  object,  no  doubt,  facility  and  convenience.  The  most  ordinary  court  for  the 
trial  of  slaves,  is  composed  of  justices  and  freeholders,  particularly  for  the  trial  and 
punishment  of  inferior  crimes.  In  Virginia,  offences  affecting  the  life  of  the  slave 
are  tried  by  the  "justices'  and  freeholders'  court."  1  Rev.  Code,  428.  And  a  similar 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  213 

jury,  the  counsel  for  the  defendant  challenged  for  cause  those  jurors 
who  were  not  owners  of  slaves  ;  which  was  overruled  by  the  pre 
siding  judge.  After  a  verdict  for  the  state,  the  defendant's  counsel 
moved  in  arrest  of  judgment,  on  the  ground  that  he  was  entitled  to 
a  jury  of  slave  holders. 

Taylor,  Ch.  J.  It  appears  to  me,  that  the  act  of  1793,  ch.  381., 
extending  the  trial  by  jury  to  slaves,  and  directing  the  jury  to  be 
composed  of  owners  of  slaves,  is  not  repealed  by  any  subsequent 
law.  A  twofold  consideration  dictated  the  policy  of  this  law,  the 
force  of  which  remains  unimpaired  by  the  extension  of  additional 
privileges  to  slaves.  It  was  intended  to  surround  the  life  of  the 
slave  with  additional  safeguards,  and  more  effectually  to  protect  the 
property  of  the  owner,  by  infusing  into  the  trial,  that  temperate  and 
impartial  feeling,  which  would  probably  exist  in  persons  owning 
the  same  sort  of  property.  That  the  master  would  have  assurance 
of  an  equitable  trial  by  persons  who  had  property  constantly  ex 
posed  to  similar  accusations,  and  would  not  wantonly  sacrifice  the 
life  of  a  slave,  but  yield  it  only  to  a  sense  of  justice,  daily  experi 
ence  is  sufficient  to  convince  us.  The  property  of  a  man  is  more 
secure  when  he  cannot  be  deprived  of  it,  except  by  a  jury,  part  of 
whom  at  least,  have  the  like  kind  of  property  to  lose.  And  this 
reason,  it  seems  to  me,  continues  to  operate  with  full  force,  not 
withstanding  the  many  humane  and  valuable  provisions  which  have 
been  subsequently  made  for  the  trial  of  slaves.  I  am  of  opinion, 
that  the  judgment  should  be  arrested. 


tribunal  is  established  in  South  Carolina.  James'  Dig.  392.  And  in  Louisiana,  by  an 
act  passed  June  7,  1806.  1  Martin's  Dig.  642.  But  in  some  other  states  the  ordinary 
tribunals  of  the  common  law  have  cognizance  of  offences  committed  by  the  slave. 
This  is  secured  to  him  in  Kentucky  by  the  act  of  Feb.  10,  1819.  Litt.  &  Swi.  1164. 
And  a  similar  principle  applies  to  capital  offences  in  Georgia.  Prince's  Dig.  450.  And 
the  important  privilege  of  trial  by  jury  is  secured  to  slaves  in  Missouri,  by  the  consti 
tution  of  that  state.  The  constitution  of  Alabama  secures  to  the  slaves  of  that  state  a 
similar  privilege.  See  3d  article  of  the  constitution  of  Missouri,  and  the  constitution 
of  Alabama,  tit.  slaves,  §2.  And  by  the  laws  of  Maryland,  act  of  1751,  ch.  14.,  trial 
by  jury  is  secured  to  slaves  in  capital  cases.  And  so  also  in  North  Carolina,  as  ap 
pears  by  Haywood's  Manual,  532;  and  also  in  Tennessee.  See  Tennessee  Laws  of 
1813. 


214  SLAVERY. 

4. 

THE  STATE  v.  CHARITY.    Dec.  T.  1830.     2  Devereaux's  North 
Carolina  Rep.  543. 

On  an  in-       The  prisoner  was  indicted  for  the  murder  of  her  own  child,  and 
dictmenta-  wag  trje(j  Defore  hjs  Honor  Judsre  Strange.      On  the  trial,  the 

gainst  a 

slave  for  a  master  was  offered  by  the  prosecution,  to  prove  the  confessions 
fence,  the  of  the  prisoner.  This  was  objected  to  by  the  master,  and  by  the 
Prisoner  »  but  the  objection  was  overruled,  and  the  witness  exam- 


pelled  to    ined.      The  prisoner  was  convicted,  and  appealed  to  this  court. 

Ruffin,  J.  I  do  not  know  that  the  question  made  in  this  case 
has  ever  arisen  before  in  this  state.  Nor  have  I  been  able  to  find 
a  decision  of  it  in  any  of  our  sister  states.  It  must  be  decided, 
therefore,  on  general  principles.  It  is  a  fundamental  rule  of  evi 
dence  at  common  law,  that  a  party  to  a  suit,  or  one  directly  in 
terested  in  the  result,  is  not  competent  to  testify  on  the  side  of  his 
interest,  nor  can  he  be  compelled  to  testify  against  it.  This  rule 
less  frequently  applies  to  public  prosecutions  than  to  civil  actions  ; 
because  it  cannot  often  happen  that  private  rights  are  directly  in 
volved,  or  can  be  consequentially  affected  by  verdicts  or  indictments. 
But  when  they  are,  the  rule  prevails  in  one  case  as  well  as  the 
other,  subject  to  a  few  certain  exceptions  of  necessity  or  statute 
provision  :  as  in  cases  of  violence  on  the  wife,  or  of  a  witness  who 
is  entitled  to  a  reward,  on  a  conviction  of  the  offender,  upon  his 
testimony.  But  in  other  instances,  there  is  no  distinction  between 
the  eflect  of  a  direct  interest  in  criminal  or  civil  cases.  A  wife 
cannot  testify  for  one  who  is  a  co-defendant  with  her  husband 
upon  an  indictment  for  a  riot  or  conspiracy.  A  prosecutor,  or 
his  wife,  cannot  give  evidence  in  an  indictment  for  forcible  entry, 
under  the  statutes  of  Henry  and  James.  One  charged  as  accessary, 
cannot  be  a  witness  for  the  principal,  and  other  like  cases  This 
has  never  been  carried  so  far  as  to  embrace  heirs  apparent,  or  en 
tail,  or  remaindermen,  or  masters  of  apprentices.  In  the  former 
cases,  the  interest  is  too  uncertain  and  remote  ;  in  the  latter,  there 
is  no  legal  interest,  because  there  is  no  properly.  But  in  the  case 
of  master  and  slave,  the  interest  is  direct  and  immediate.  The 
whole  property  in  the  slave  is  in  jeopardy,  and  the  master  is  liable 
for  the  costs  in  case  of  a  conviction.  He  is  not,  it  is  true,  party 
to  the  record,  in  the  sense  of  reversing  the  judgment  for  any  ir 
regularity  in  giving  him  notice  ;  which  is  a  collateral  matter  within 
the  discretion  of  the  court,  as  to  the  time  and  mode  of  proceeding. 
But  his  interests  are  essentially  at  stake,  as  much  as  the  life  of  the 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  215 

slave  is.  The  rule  of  exclusion  or  protection,  on  the  score  of  in 
terest,  must  apply  in  all  cases  alike,  because  it  is  drawn  from  the 
known  general  frailty  of  our  species.  The  evidence  of  an  interest 
ed  witness  is  rejected,  because  we  cannot  have  confidence,  that 
men  in  general  in  that  state  will  tell  the  truth,  and  the  whole  truth. 
The  temptation  is  too  strong  for  men  to  be  exposed  to  it ;  and  the 
danger  of  a  jury  being  misled  is  too  great.  This  applies  equally  to 
all  cases.  I  think,  therefore,  that  a  master  cannot  be  a  witness 
for  his  slave.  It  follows,  that  he  ought  not  to  be  forced  on  the 
other  side.  But  this  suggests  another  difficulty.  The  privilege 
not  to  testify,  upon  the  ground  of  interest,  is  that  of  the  master, 
and  not  of  the  slave.  It  may  be  consequently  waved  by  the  for 
mer.  He  may  himself  prosecute,  and  give  evidence  against  his 
slave.  And  since  that  is  certain,  I  have  entertained  the  most  seri 
ous  scruples  against  interfering  with  this  conviction.  It  cannot  be 
presumed  that  the  master  would  falsely  and  corruptly  destroy  his 
own  property.  His  evidence  on  the  side  of  his  interest  may  be 
supected  ;  but  that  against  it,  cannot  be  supposed  to  be  stronger 
than  the  truth  would  justify.  If  so,  the  prisoner  can  have  no 
cause  to  complain.  And  could  I  separate  her  rights  from  those 
of  the  witness,  I  would  do  so,  and  let  the  verdict  stand.  But  they 
are  so  connected,  that  justice  cannot  be  done  to  the  master,  without 
giving  the  slave  the  benefit  of  it.  We  cannot  restore  him  his 
property,  without  yielding  her  another  trial  for  her  life  ;  nor  re 
verse  the  judgment  for  the  costs,  without  reversing  it  altogether. 
I  therefore  conclude,  with  much  hesitation,  that  as  the  master  did 
object  to  be  sworn,  there  must  be  a  new  trial.  When  I  speak  of 
the  power  of  the  master  to  wave  his  privilege  and  give  testimony, 
I  would  not  be  understood  as  putting  the  slave's  life  in  the  master's 
hands,  and  resting  it  on  his  mercy.  I  allude  to  testimony  to 
facts  within  his  knowledge.  When  he  is  called  to  confessions,  a 
different  state  of  the  case  may  arise,  in  which  the  privilege  will  be 
that  of  the  prisoner.  The  confessions  may  have  been  made  in 
reference  to  defence,  and  as  instructions  for  conducting  it ;  or 
being  to  the  master,  may  or  may  not  be  of  that  voluntary  character 
which  the  law,  not  less  in  wisdom  than  humanity,  requires.  Upon 
those  points,  not  the  slightest  intimation  of  opinion  is  now  intended; 
for  there  is  not  a  little  difficulty  in  them,  and  this  case  does  not  re 
quire  a  decision  upon  them. 

The  exception  of  the  prisoner  does  not  present  an  objection  to 
the  evidence,  upon  either  of  these  grounds  ;  and  therefore  the 


216  SLAVERY. 

court  must  take  it,  that  none  existed  in  point  of  fact ;  that  the  con 
fessions  were  made  freely,  and  not  with  a  view  to  defence. 

Hall,  J.  The  question  suhmitted  to  the  court  is  one  of  a  com 
plex  nature.  The  rights  of  the  state,  of  the  master,  and  of  the 
slave,  are  involved  in  it.  If  the  offence  charged  in  the  indictment 
has  been  commited,  the  state  is  entitled  to  redress,  by  the  legal 
conviction  and  punishment  of  the  slave.  In  such  case,  the  master 
must  submit  to  the  loss  of  the  slave,  and  the  slave  must  submit  to 
her  fate.  But  it  is  necessary  to  inquire,  whether  the  rights  of  either 
have  been  violated.  First,  with  respect  to  the  rights  of  the  master. 
It  is  a  rule  of  evidence,  that  a  party  to  a  suit  cannot  be  admitted  or 
compelled  to  give  evidence  in  it,  because  he  is  directly  interested 
in  the  issue  of  it.  The  trial  throws  directly  upon  a  loss  or  a  benefit. 
He  is,  therefore,  on  the  score  of  interest,  altogether  excluded  from 
giving  evidence.  It  may  be  taken  in  the  present  case,  that  the 
master  is  not  a  party  in  form  to  the  proceeding.  But  he  is  sub 
stantially  so.  He  has  as  great  an  interest  in  the  issue,  as  if  it  was 
made  up  in  an  action  of  detinue,  to  which  he  was  a  party.  The 
conviction  of  the  slave,  is  a  judgment  against  him  to  the  amount  of 
her  value.  In  addition  to  this,  he  is  made  liable  by  the  act  of  1793 
(Rev.  Code  381.)  for  the  costs  of  the  prosecution,  provided  the 
slave,  if  a  free  person,  would  be  liable  for  them.  And  there  is  no 
doubt,  that  she  would  be  liable  upon  conviction. 

I  therefore  think,  that  the  master  was  so  much  interested  in  the 
case,  that  he  ought  not  to  have  been  examined  as  a  witness,  when 
objected  to  by  himself.  The  objection,  however,  is  personal  to 
the  master.  It  cannot  be  taken  by  the  slave.  As  to  her,  the  evi 
dence  was  legal.  But  to  rectify  the  error  as  to  the  master  a  new 
trial  must  be  awarded.  As  to  the  rights  of  the  slave,  were  the 
master  to  forego  his  interest,  and  voluntarily  give  evidence  against 
her,  I  am  inclined  to  think,  that  she  might  legally  object  to  his 
giving  in  evidence  any  of  her  confessions  made  to  him,  because, 
by  the  act  of  1793,  (Rev.  C.  381.)  he  is  authorized  to  defend  her; 
and  because  she  is  his  slave,  and  by  various  means,  against  which 
slavery  could  make  but  little  resistance,  he  might  extract  from  her 
any  confessions  he  pleased. 

But  upon  this  part  of  the  case  I  give  no  opinion. 

Henderson,  Ch.  J.  My  concurrence  in  the  opinion  of  the  court, 
in  excluding  the  master  on  the  ground  of  interest,  is  so  feeble,  that 
it  almost  amounts  to  a  dissent.  Where  pecuniary  interest  only  is 
at  stake,  to  exclude  a  witness  on  the  score  of  interest,  however 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  217 

small,  is  applying  a  scale  of  morality  to  our  nature  sufficiently  hu 
miliating.  But  where  the  life  or  death  of  a  fellow  being  is  to  be 
the  result  of  the  trial,  to  exclude  a  witness,  because  he  may  have  a 
pecuniary  interest,  either  in  preserving  or  in  taking  the  life  of  the 
accused,  is  attributing  to  us,  frail  as  we  know  ourselves  to  be,  more 
depravity  than  we  are  willing,  I  think,  to  admit.  And  the  rule,  as 
laid  down  by  the  court,  as  I  understand  it,  excludes  the  master  on 
the  same  ground,  that  of  interest,  from  becoming  a  witness  for  his 
slave  ;  for  the  rule  must  be  mutual.  If  he  cannot  be  compelled 
to  give  evidence  against  his  slave,  because  he  has  an  interest  in  his 
acquittal,  he  cannot,  if  he  wishes,  or  rather  is  willing,  to  give  evi 
dence  for  the  slave,  on  the  same  ground. 

I  should  rather  suppose,  that  the  interest  at  stake,  being  so  en 
tirely  different  from  that  which  is  brought  forward  to  protect  the 
witness  from  giving  evidence,  or  to  exclude  him,  if  willing,  is  not  to 
be  weighed  in  the  same  balance  with  mere  pecuniary  interest.     It 
is  so  transcendant  in  its  nature,  that  its  weight  is  not  to  be  ascer 
tained  by  mere  money  balances.      Cases  are  to  be  found  in  which 
witnesses  were  objected  to,  on  the  score  of  interest  in  procuring 
convictions  for  the  sake  of  reward.    They  were  admitted  because  it 
was  said,  that  the  statute  giving  the  reward  contemplated  them  as 
good  witnesses  ;  for  the  reward  is  given  on  condition  that  they 
gave,  or  procured  to  be  given,  material  evidence  on  the  trial.  There 
are  other  cases  of  interest  arising  under  a  statute  giving  them  ad 
vantages,  in  which  the  statute  renders  them  competent     But  I 
know  of  no  case  of  life  and  death,  where  interest  excluded  a  witness. 
These  statute  cases  did  not  require  a  further  investigation  of  the 
principle  of  the  rule  of  exclusion.     They  were  admitted,  not  ex 
cluded.     These  different  kinds  of  interest  were  not  thrown  into 
the  opposite  scales  of  the  same  balance.     I  consider  indictments 
under  the  statute  of  forcible  entries  and  detainers,  as  mere  civil 
suits,  and  the  decisions  under  them  as  made  in  civil  causes.     For 
the  prosecutor,  if  successful,  obtains  a  writ  of  restitution.     I  am 
inclined  to  think,  but  I  am  by  no  means  satisfied,  that  the  master 
is  a  good  witness  for  his  slave  ;  and  if  so,  may  be  compelled  to 
give  evidence  against  him ;  that  is,  as  to  acts,  but  not  as  to  confes 
sions  ;  and  more  particularly,  as  to  those  made  in  reference  to  de 
fence.     But  I  think  that  they  ought  to  be  excluded  in  all  cases  of 
confessions.     The  master  has  an  almost  absolute  control  over  the 
body  and  mind  of  his  slave.     The  master's  will  is  the  slave's  will. 
All  his  acts,  all  his  sayings,  are  made  with  a  view  to  propitiate  his 
28 


218  SLAVERY. 

master.  His  confessions  are  made,  not  from  a  love  of  truth,  not 
from  a  sense  of  duty,  not  to  speak  a  falsehood,  but  to  please  his 
master ;  and  it  is  vain  that  his  master  tells  him  to  speak  the  truth, 
and  conceals  from  him  how  he  wished  the  question  answered. 
The  slave  will  ascertain,  or  which  is  the  same  thing,  think  that  he 
has  ascertained  the  wishes  of  his  master,  and  mould  his  answer 
accordingly.  We,  therefore,  more  often  get  the  wishes  of  the 
master,  or  the  slave's  belief  of  his  wishes,  than  the  truth.  And  this 
is  so  often  the  case,  that  the  public  justice  of  the  country  requires 
that  they  should  be  altogether  excluded.  Confessions  made  to 
propitiate  the  good  opinion  of  the  gaoler,  or  to  avert  harsh  treat 
ment,  are  excluded  upon  the  same  principle.  I  think  the  case  of 
the  master  and  slave  much  stronger.  The  power  of  the  gaoler  is 
temporary  and  limited  ;  that  of  the  master  permanent  and  almost 
unlimited.  The  public,  justice  of  the  country  loses  but  little  by 
excluding  these  confessions  ;  for  confessions  of  all  kinds  are  very 
questionable  guides  to  truth.  In  crimes  of  any  magnitude,  they 
seldom  speak  the  truth.  But  if  I  should  be  entirely  mistaken  as 
regards  the  slave's  confessions  in  general,  I  think  that  confessions 
made  in  reference  to  defence  certainly  cannot  be  received  ;  for 
the  master,  from  his  situation,  from  the  duties  which  the  legislature 
have  imposed  on  him,  is  the  guardian  and  defender  of  his  slave.  It 
is  a  moral  duty  of  the  highest  grade,  to  see  that  no  injustice  is 
done  him.  The  relation  subsisting  between  them,  imposes  upon 
him  a  load  of  obligations,  and  he  should  not  be  permitted,  even  if 
willing,  to  disregard  them.  He  is  the  medium  of  communication 
with  the  counsel  in  court ;  and  a  fair  and  free  defence  cannot  be 
made,  if  this  confidence  is  permitted  to  be  violated.  In  the  pre 
sent  case,  it  does  not  appear  what  was  the  object  in  making  the 
confession.  In  common  cases,  the  party  must  bring  his  case 
within  the  law,  as  if  his  question  regarded  the  evidence  of  one  who 
"  was  an  attorney,  it  must  be  stated  that  the  disclosure  related  to  a 
case  in  which  he  acted  as  counsel  of  him  who  made  the  confession, 
and  that  it  related  to  the  cause.  In  this  case  I  think  it  is  different. 
Prima  facie,  the  confession  was  made  with  reference  to  defence 
or  protection ;  for  the  master  is  the  perpetual  defender  and  pro 
tector  of  his  slave.  And  if  it  did  not  relate  to  defence  or  protec 
tion  it  should  be  shown  on  the  other  side.  At  least,  in  a  case  of 
such  magnitude  to  the  prisoner,  I  should  be  unwilling  to  consider 
it  as  made  with  a  different  intent,  unless  proved  to  be  so.  Judg 
ment  of  the  court  below  reversed,  and  a  new  trial  granted. 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  219 

5. 

THE  STATE  v.    SUE,    a   Negro    Woman  Slave.    1800. 

Cameron  and  Norwood's  North  Carolina  Rep.  54. 

The  prisoner  had  been  tried  on  a  charge  of  giving,  or  procuring  glaveg  are 
to  be  given,  to  William  Cooke,  and  several  of  his  family,  a  poison  jJJ^11*^ 
supposed  to  be  arsenic,  with  an  intent  to  kill  the  said  persons,  and  ished  with 
was  found  guilty  of  the  fact  by  the  jury  empanneled  and  sworn  any  'case 


to  try  the  issue.     On  which  conviction  the  justices  present  passed 

the  following  sentence  :    "  That  the   prisoner,  Sue,  is  guilty  of  would  not 

death  under  the  act  of  Assembly,  in  that  case  made  and  provided  ; 

and  that  the  said  Sue,  on  Monday  the  14th  of  April,  1300,  be 

taken  to  the  place  of  execution,  and  between  the  hours  of  11  and  cept  by  vir 

tue  of  the 
4  o'clock  of  that  day,  she  be  hanged  by  the  neck  until  she  be  dead."  act  of  1741, 

The  counsel  for  the  prisoner  moved  and  obtained  a  writ  of  cer-  47'    The  " 


teorari  ;  in  consequence  of  which  the  prisoner,  together  with  the 

record  of  her  trial  and  conviction,  and  of  the  sentence  passed  extends  to 

the  quan- 

thereon,  were  brought  up  to  the  superior  court.  turn  only, 

Johnson,  J.  It  does  not  appear  to  me  from  any  construction  de^eol"6 
which  I  can  make  of  the  laws  of  this  state,  respecting  the  punish-  punish 
ment  of  slaves,  that  they  are  made  liable  to  be  punished  with  death, 
in  any  case  where  the  like  punishment  is  not  by  law  to  be  inflicted 
on  a  freeman  ;  except  only  in  the  cases  mentioned  in  the  47th  sec 
tion  of  the  act  concerning  servants  and  slaves,  passed  in  the  year 
1741.  I  cannot  prevail  on  myself  to  adjudge,  in  any  case,  that 
a  Crime  shall  be  punished  with  death,  unless  there  is  an  express 
law  for  that  purpose  ;  and  am  of  opinion,  that  no  implication, 
however  obvious,  can  be  admitted  in  such  case,  and  that  the  dis 
cretion  allowed  in  these  cases,  must  apply  to  the  quantum  or  mea 
sure,  not  the  degree  of  punishment.  Therefore,  it  is  my  opinion, 
that  the  judgment  be  reversed,  and  that  the  prisoner  be  remanded 
to  receive  such  other  punishment,  short  of  death,  as  the  court  who 
tried  her  shall  think  just,  so  that  the  same  be  warranted  by  the 
laws  and  constitution  of  the  state. 

Taylor,  J.  In  ascertaining  the  true  construction  of  the  act,  it  is 
necessary  to  take  into  view  some  others  which  have  been  made 
relative  to  the  same  subject.  The  whole  are  founded  on  a  princi 
ple  of  severe  policy,  absolutely  necessary  to  guard  society  against 
the  evil  consequences  resulting  from  the  condition  of  slavery. 
Where  some  offences  had  been  previously  provided  against,  in  an 
act  passed  the  same  session,  one  perhaps  at  that  time  of  frequent 
occuirence,  in  the  nature  of  a  conspiracy  by  three  or  more,  to 


220  SLAVERY. 

rebel  or  murder,  is  by  this  act  made  punishable  with  death.  The 
next  clause  requires,  that  upon  a  slave  being  convicted  of  any 
other  crime  or  misdemeanor,  such  judgment  shall  be  passed,  accord 
ing  to  the  discretion  of  the  court,  as  the  nature  of  the  crime  shall 
require.  These  expressions  do,  in  my  opinion,  give  the  court  a 
power  to  inflict  any  punishment  upon  any  crime  or  misdemeanor, 
where  a  specific  punishment  had  not  been  previously  directed  by 
law.  In  such  cases  the  prescribed  punishment  must  be  inflicted  ; 
but  in  all  others  the  court  are  to  regulate  their  discretion  by  the 
nature  of  the  crime.  This  will  depend  upon  their  frequency, 
enormity,  the  temptation  to  commit  them,  the  necessity  of  an  ex 
ample,  and  a  variety  of  other  circumstances,  that  ought,  in  a  pecu 
liar  manner,  to  be  considered  in  estimating  the  offences  of  these 
persons.  It  certainly  could  not  be  the  intent  of  the  legislature 
that  they  should  be  punished  according  to  the  ordinary  penal  code, 
for  then  it  were  unnecessary  to  have  gone  further  than  a  simple 
regulation  of  the  trial,  and  not  to  have  said  any  thing  about  the 
punishment ;  and  because,  by  the  former  act,  the  offence  of  steal 
ing  certain  property  is  punishable  with  whipping  and  the  pillory  ; 
•whereas  stealing  money  would  only  be  punished  by  burning  in  the 
hand.  This  is  a  discrimination  in  favor  of  an  offence  of  equal 
magnitude,  which  I  do  not  think  the  legislature  intended  to  make. 
The  act  of  1786  (Iredell's  Revisal,  page  588.)  does,  in  the  pream 
ble  recognize  the  fact,  that  many  persons  by  cruel  treatment  to 
their  slaves,  cause  them  to  commit  crimes  for  which  they  are  exe 
cuted.  It  then  proceeds  to  take  away  the  allowance  which  had 
been  theretofore  made  to  the  owners  of  such  slaves.  The  cruel 
treatment  here  alluded  to  must  consist  in  withholding  from  them 
the  necessaries  of  life  ;  and  the  crimes  thus  resulting,  are  such  as 
are  calculated  to  furnish  them  with  food  and  raiment.  It  then  ap 
pears,  that  in  1786,  the  legislature  was  perfectly  aware,  that  from 
1741  until  that  time,  it  had  been  the  practice  to  execute  slaves 
upon  a  conviction  of  grand  larceny,  when  free  persons  were  only 
burnt  in  the  hand  ;  and  they  have  not  declared  that  this  is  a  false 
exposition  of  the  law.  It  seems  to  me  that  the  acts  subsequently 
made,  had  no  other  end  than  to  extend  to  them  the  trial  by  jury, 
and  to  ascertain  the  respective  provinces  of  the  court  and  the  jury, 
still  leaving  the  discretion  of  the  former,  as  to  the  punishment,  as 
unlimited  as  the  first  act  had  made  it.  I  am  sensible  that  the 
law  is  a  harsh  one  ;  and  I  fear  that  abuses  have  been  committed 
under  it ;  but  these  may  be  controlled  by  the  legislature  whenever 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  221 

they  think  fit  to  interpose.  Thinking  as  I  do,  from  the  short  time 
I  have  had  to  deliberate  on  this  case,  that  their  intention  is  free 
from  doubt,  a  sense  of  duty  compels  me  to  pronounce  it,  how 
ever  repugnant  it  may  be  to  my  private  notions  of  humanity. 

Macay,  J.  The  act  of  assembly  passed  in  1741,  sec.  47.,  of 
chap,  xxiv.,  makes  the  consulting,  the  advising,  the  conspiring  to 
rebel,  to  make  insurrection  the  plotting  or  conspiring  of  three  or 
more  slaves  to  murder  any  person  or  persons  whatever,  to  be  felony, 
and  on  conviction  to  suffer  death.  Section  48.  of  same  chapter, 
directs  the  manner  in  which  every  slave  committing  such  offence, 
or  any  other  crime  or  misdemeanor,  shall  be  tried,  and  what  evi 
dence  shall  be  admissible,  and  direct  the  three  justices  and  the 
four  freeholders,  on  the  slave  or  slaves  being  found  guilty,  "  to 
pass  such  judgment  on  such  offender  according  to  their  discretion, 
as  the  nature  of  the  crime  or  offence  shall  require,  and  on  such 
judgment  to  award  execution."  The  offence  found  by  the  jury  in 
this  case,  is  an  attempt  to  poison  ;  therefore  the  offence  does  not 
come  under  the  description  of  any  of  those  offences  enacted  by 
the  47th  section.  Had  the  act  stopped  here,  she  must  have  been 
acquitted.  But  section  48  empowers  the  three  justices  and  four 
freeholders  to  try  her  for  any  other  crime  or  misdemeanor,  and  to 
pass  such  judgment,  according  to  their  discretion,  as  the  nature  of 
the  offence  may  require. 

Crimes  and  misdemeanors  were  offences  known  by  the  law  at 
the  time  of  passing  this  act,  and  the  punishment  also  known  and 
established.  The  offence  found  against  Sue  is  an  attempt  to  poi 
son.  If  the  same  offence  was  committed  by  a  free  person,  it  could 
not  be  punished  with  death ;  it  is  only  a  misdemeanor  of  an  ag 
gravated  nature,  and  could  be  punished  with  fine,  imprisonment, 
and  other  corporal  punishment ;  no  judgment  of  death  could  be 
given.  The  punishment  of  this  particular  offence  was  known 
when  the  act  passed.  The  act  has  made  no  alteration  in  the  pun 
ishment  ;  it  was  then  discretionary  with  the  court.  It  never  was 
considered  that  the  court  could  give  judgment  of  death  for  this  of- 
ence ;  they  could  fine,  imprison,  or  inflict  other  corporal  punish 
ment,  as  had  been  established  by  common  usage.  The  discretion 
given  by  the  act  of  assembly,  is  a  legal  discretion,  not  the  power 
of  altering  punishments,  or  affixing  to  any  offence  a  punishment 
unknown  to  the  law.  This  would  be  for  the  court  to  legislate,  not 
to  adjudicate,  a  power  unknown  to  any  of  the  courts  of  this  state. 


222  SLAVERY. 

The  justices  of  the  county  court  have  pronounced  a  judgment 
different  from  the  nature  of  the  offence  which  the  jury  have  found 
against  the  prisoner ;  their  discretion  only  extends  to  increasing 
or  diminishing  the  punishment.  Let  the  judgment  pronounced 
by  the  said  justices  against  the  prisoner  be  reversed,  and  the  pris 
oner  be  remanded  to  said  justices,  to  receive  such  judgment  as  the 
laws  and  constitution  of  this  state  will  warrant. 

6. 

BORE  v.  BUSH  et  al.     18  Martin's  Louisiana  Rep.  1. 
Free  per-        Appeal  from  the  court  of  the  fourth  district. 

sons  of  co- 

lor  are  en-       Per  Cur.     Porter,  J.     This  is  an  action  against  a  justice  of  the 
trial  by°ju*  Peace>  and  m"s  constable,  for  false  imprisonment.      The  petition 
J&^ISj  states  the  arrest>  and  the  previous  proceedings.    It  avers  they  were 
for  ofFen-    illegal,  oppressive,  and  done  with  an  intention  to  extort  money  from 
justid  of    the  plaintiff.     The  justice  pleaded,  that  he  was  acting  in  his  official 
the  peace,    capacity.    That  he  decided  according  to  the  best  of  his  understand 
ing  ;  and  that  he  was  not  responsible  for  errors  of  judgment.  The 
constable  denied  that  he  had  arrested  or  imprisoned  the  petitioner. 
The  justice  of  the  peace  was  not  protected  by  his  plea,  of  error  in 
judgment,  for  he  was  not  acting  within  his  jurisdiction.     Free  per 
sons  of  color  are  certainly  bound  to  treat  the  citizens  of  the  state 
with  respect ;  and  if  they  do  not,  they  are  subject  to  fine  and  im 
prisonment.     But  the  law  has  provided,  that  for  offences  of  this 
kind,  they  are  entitled  to  a  trial  by  jury.     Now,  as  justices  of  the 
peace  have  no  right  to  summon  juries,  it  is  a  necessary  consequence 
of  the  want  of  authority  to  do  so,  that  the  defendant  was  without 
power  to  try  and  condemn.     The  only  cognizance  he  could  take 
of  the  case  was,  to  commit  the  plaintiff,  unless  he  gave  bail  for  his 
appearance  at  the  next  term  of  the  district  court.  Mat.  Dig.  vol.  1. 
Judgment  of  the  district  court  reversed. 

7. 
Ex  parte.  JESSEE  BROWN.  May  T.  1831.     2  Bailey's  Rep.  323. 

tannotebe       A  COUrt  of  maS*lstrates  and  freeholders  had  convicted  and  sen- 
twice  tried  tenced  Brown  to  be  whipped  ;  which  sentence  was  executed.  -He 

and  pun 
ished  for — . __ 

the  same 

offence.*  *  Much  has  been  said  of  the  disparity  of  punishment  between  the  white  inhabitants 

and  the  slaves,  and  negroes  of  the  same  state ;  that  slaves  are  punished  with  much  more 
severity,  for  the  commission  of  similar  crimes  by  white  persons,  than  the  latter.  The 
charge  is  undoubtedly  true  to  a  considerable  extent.  It  must  be  remembered  that  the 


TRIAL  AND  PUNISHMENT  OF  SLAVES.  223 

was  afterwards  tried  and  condemned  to  death  for  the  same  offence. 
A  prohibition  was  granted,  and  on  an  appeal  being  taken  to  settle 
the  question,  the  decision  of  the  judge,  on  granting  the  prohibition, 
was  sustained. 

8. 
STATE  v.  SIMS.     Dec.  T.  1830.     2  Bailey's  Rep.  29. 

The  defendant  being  convicted  of  being  accessary  to  a  murder  The  con- 
by  a  number  of  slaves,  who  had  been  tried,  convicted,  and  execu-  Jave  offals 


ted,  he  moved  for  a  new  trial,  on  the  ground  "  that  the  declaration  owu 

as  prmci- 

of  the  said  slaves,  as  to  their  agency  in  the  murder,  and  the  mode  pal,  is  evi- 
in  which  they  perpetrated  it,  were  received  in  evidence  ;  and  the  the  tria^of 
declaration  of  each  slave  was  received,  not  only  as  to  his  own  guilt,  ^a^teac. 
but  as  to  the  acts  of  others."  cessory  be 

The  Court,  Johnson,  J.,  overruled  the  motion  for  a  new  trial,  and  fact. 
decided,  that  the  confession  of  a  slave  of  his  own  guilt,  as  principal, 
is  admissible  in  evidence  on  the  trial  of  a  free  white  man  as  acces 
sory  before  the  fact. 

9. 
STATE  v.  MARY  HAYES.     June  T.  1829.     1  Bailey's  Rep.  275. 

The  court  held,  that  the  14th  section  of  the  act  of  1740,  which  The  statute 
provides  that  all  crimes  and  offences  committed  by  free  negroes, 


Indians,  (Indians  in  amity  with  this  state  only  excepted,)  inulat-  for  trial  of 
toes,  or  mestizoes,  shall  be  proceeded  in,  heard,  tried,  and  adjudg-  &c.  is  ex- 
ed,  and  determined,  by  a  court  of  justices  and  freeholders,  in  like 
manner,  as  is  directed  for  the  trial  of  crimes  and  offences  commit 
ted  by  slaves,  any  law,  usage,  or  custom,  to  the  contrary  notwith 
standing. 


primary  object  of  the  enactment  of  penal  laws,  is  the  protection  and  security  of  those 
who  make  them.  The  slave  has  no  agency  in  making  them.  He  is  indeed  one 
cause  of  the  apprehended  evils  to  the  other  class,  which  those  laws  are  expected  to 
remedy.  That  he  should  be  held  amenable  for  a  violation  of  those  rules  established 
for  the  security  of  the  other,  is  the  natural  result  of  the  state  in  which  he  is  placed. 
And  the  severity  of  those  rules  will  always  bear  a  relation  to  that  danger,  real  or  ideal, 
of  the  other  class. 

It  has  been  so  among  all  nations,  and  will  ever  continue  to  be  so,  while  the  dispa 
rity  between  bond  and  free  remains.  In  a  practical  treatise  it  would  probably  be 
considered  out  of  place  to  collect  the  various  statutes  in  relation  to  whipping  and 
other  punishment  of  slaves,  to  be  found  jn  the  statute  books  of  the  various  states. 


224  SLAVERY. 

Per  Cur.  O'JVW/,  J.  The  jurisdiction  conferred  by  the  act,  is 
exclusive  in  its  character,  by  the  terms  of  the  grant.  See  White 
v.  Helmes,  1  M'Cord's  Rep.  430.;  and  Groning  v.  Devanna,  2 
Bailey's  Rep.  192. 

10. 

COMMONWEALTH  v.  WATTS.    Dec.  T.   1833,     4  Leigh's  Rep. 

472. 

Construc- 

SSwafof  Tne  court  in  tnis  case  held,  that  a  white  girl  under  twelve  years 
I822ch.34.  of  agej  an(j  not  having  attained  to  puberty,  is  a  white  woman,  with 
in  the  meaning  of  the  statute  of  1822-3,  ch.  34.  §  3.,  making  it 
felony,  punishable  with  death,  for  a  slave,  free  negro,  or  mulatto, 
to  attempt  to  ravish  a  white  woman ;  and  the  court  observed,  that 
they  did  not  think  there  was  any  distinction  between  a  violence  of 
this  kind  practiced  upon  a  female  between  the  age  of  ten  and 
twelve,  and  a  similar  violence  practiced  upon  one  above  the  age  of 
twelve.  Both  are  equally  rapes. 

11. 
COMMONWEALTH  v.  FIELDS.    Dec.    T.    1832.    4  Leigh's  Rep. 

The  same  a40 

statute.  648. 

Fields,  a  free  negro,  was  indicted  under  the  statute  of  1822,  ch. 
34.  §  3.  for  assaulting  and  attempting  to  ravish  a  white  woman. 

The  jury  found  a  special  verdict  in  the  following  words  :  "  We 
find  from  the  evidence,  that  the  prisoner  did  not  intend  to  have 
carnal  knowledge  of  the  within  named  S.  L.,  as  alleged  in  the  in 
dictment,  by  force ;  but  that  he  intended  to  have  carnal  knowledge 
of  her  while  she  was  asleep  ;  that  he  made  the  attempt  to  have 
such  carnal  knowledge  of  her  when  she  was  asleep,  but  used  no 
force  except  such  as  was  incident  to  getting  to  bed  with  her,  and 
stripping  up  her  night  garment,  in  which  she  was  sleeping,  and 
which  caused  her  to  awake." 

Per  Cur.  This  court  is  of  opinion,  that  upon  the  special  ver 
dict  found  in  this  cause,  judgment  of  acquittal  ought  to  be  ren 
dered  in  favor  of  the  prisoner. 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE.  225 


(XVI.)    OF  THE  LIABILITIES  OF  THE  MASTER  FOR 
THE   ACTS   OF   HIS  SLAVE. 

(A.)    FOR     CONTRACTS     MADE    BY    THE    SLAVE, 
1. 

D  UNBAR  v.  WILLIAMS.     May  T.  1813.     10  John's.  Rep.  249. 

Assumpsit  for  attendance  upon  the  defendant's  negro  slave.  No  action 
The  slave  had  been  cured  of  a  disease  by  the  plaintiff  without  the  physician 
knowledge  of  the  defendant.     Verdict  for  the  plaintiff. 


Per  Cur.  The  action  cannot  be  sustained.  It  would  be  dan-  attendance 
gerous  to  the  rights  of  owners  of  slaves,  to  allow  them  to  charge  slave  with- 
their  masters  with  medical  assistance.  But  if  medical  or  other  as-  knowledge 
sistance  be  rendered  to  a  slave  in  a  case  of  necessity,  which  does  unless  it  be 

a    case    of 

not  admit  of  a  previous  application  to  the  master,  the  person  so  ren-  extreme 
dering  the  assistance,  would  probably  be  entitled  to  compensation 
from  the  master  ;  the  law  would  raise  an  implied  assumpsit,  on  the 
ground  that  the  master  was  legally  bound  to  make  the  requisite 
provision  for  the  slave.*     Judgment  reversed. 

2. 

JOHNSON  et  Ux  v.  BARRET.  Dec.  T.  1834.  2  Bailey's  Rep. 
562.  S.  P.  WELLS  v.  KENNERLY,  4  N.  M'C.  Rep.  123.; 
DUNBAR  v.  WILLIAMS,  10  Johns.  Rep.  249. 

This  was  an  action  brought  by  the  plaintiff  for  services  rendered  Liability  of 
to  the  slave  of  the  defendant  in  the  character  of  midwife.    The  de-     ® 


services 

furnished 

the  slave  in 
*  And  see  Hall  v.  Mullin,  5  Har.  and  Johns.  Rep.  190.,  where  the  court  held,  that  his    ab- 

no  contract  of  any  validity  "whatever  could  be  made  with  a  slave  without  the  consent  of  sence. 
the  owner.     But  the  slave  may  be  an  agent  for  his  master,  and  as  such,  the  master  may 
be  bound  by  the  acts  of  his  slave.  Whether  the  law  of  principal  and  agendas  adopted 
by  the  common  law,  can  be  applied  to  master  and  slave,  may  be  doubted  ;  at  least  to  its 
full  extent.     But  there  can  be  no  doubt  but  that  in  the  ordinary  domestic  business  of 
the  master  in  which  it  is  usual  to  employ  slaves,  the  master  may  do  his  business  through 
the  agency  of  his  slave,  and  is  bound  by  the  acts  of  the  slave  in  the  usual  course  of 
that  business  with  others.  Perhaps  the  true  distinction  is,  that  in  the  ordinary  business 
of  the  master,  the  slave  may  be  an  agent,  and  the  law  will  imply  a  contract  on  the  part 
of  the  master,  but  where  sk'dl  and  improved  intellect  are  requisite  for  the  performance 
of  the  undertaking  or  business,  there  would  arise  no  implication ;  but  an  express  com 
mand  or  ratification  would  be  necessary  to  hold  the  master  liable. 
29 


226  SLAVERY. 

fendant  had  instructed  the  pregnant  slave  to  ohtain  the  services  of  a 
colored  midwife,  whose  services  could  be  obtained  for  $4  00.;  but  the 
slave  obtained  the  services  of  the  plaintiff's  wife,  who  charged  $10, 
which  was  the  usual  charge.  Judgment  for  plaintiff.  Defendant 
appealed  to  the  circuit  court,  where  the  judgment  was  reversed. 
An  appeal  was  taken  to  this  court  to  reverse  the  judgment  of  the 
circuit  court. 

Per  Cur.  Johnson,  J.  The  general  rule  is,  that  the  master  is 
not  liable  for  the  contract  of  his  slave,  made  without  his  consent 
or  authority.  But  there  are  many  exceptions  to  the  general  rule, 
and  this  case  appears  to  be  one  of  them.  If  a  slave  is  in  peril  in 
the  absence  of  his  master,  the  interest  of  the  owner  is  most  effec 
tually  subserved  by  rendering  assistance  to  the  slave ;  and  in  good 
conscience,  the  owner  is  bound  to  make  satisfaction.  In  addition 
to  this,  the  case  in  hand  is  peculiar.  The  situation  of  the  de 
fendant's  slave  was  that  which  is  generally  one  of  extreme  peril, 
requiring  instant  aid.  And  if  that  was  the  situation  of  the  defend 
ant's  slave  at  the  time  Mrs.  Johnson,  the  plaintiff,  was  called  in  ; 
and  I  understand  it  was  from  the  justices'  certificate,  she  was  within 
the  exception,  and  was  entitled  to  recover.  I  am,  therefore,  of  opin 
ion,  that  the  order  of  the  circuit  court  concerning  the  justices  should 
be  reversed,  and  that  of  the  county  court  affirmed. 

3. 
WELLS  v.  KENNERLY.     Jan.  T.  1827.     4  M'Cord's  Rep.  123. 

The  owner       The  defendant  hired  his  slave  ;  and  while  in  the  service  of  the 

is  not  liable  ,  .  .  .  .  .  .    . 

for  medical  person  hiring,  the  slave  was  visited  by  the  plamtin,  a  physician, 
upon  Thi-  wno  brought  this  action  against  the  owner  for  medical  attendance, 
red  slave  The  court  decided  the  owner  was  not  liable  ;  the  hirer  having 
the  request  sent  for  the  physician.  He  alone  was  liable.  Motion  for  a  new 

of  the    hi-   .  .   i 
rer.  tnal- 

Per  Cur.  Colcock,  J.  In  this  case  the  motion  must  be  refused, 
whether  it  be  determined  by  the  rules  of  law,  or  the  policy  of  the 
country.  There  is  no  privity  of  contract  between  the  plaintiff  and 
defendant ;  and  a  voluntary  service  rendered  a  slave,  when  his 
master  is  at  hand,  cannot  create  a  responsibility,  except  under  some 
peculiar  circumstance  of  sudden  emergency.  The  service  was 
rendered  to  the  defendant,  and  was  for  his  immediate  benefit.  In 
the  case  before  us,  from  the  very  nature  of  the  obligation  imposed 
on  the  person  hiring,  the  absolute  control  over  the  slave  is  given 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE.  227 

up  by  the  master.  The  obligation  to  supply  his  daily  or  hourly 
wants  must  necessarily  be  assumed  by  the  person  who  takes  this 
absolute  possession  of  a  slave.  Motion  dismissed. 

4. 

GORE   v.   BUZZARD'S   ADM'RS.        Feb.    T.   1833.       4   Leigh's 

Rep.  231. 

Assumpsit  by   Buzzard's  administrators  against  Gore.       The  A  person 
facts  in  this  case  were  as  follows  :  For  some  four  or  five  years  hide*  f*^ 
preceding  the  death  of  Buzzard,  who  was  a  tanner,  Gore    was  tan«er,and 

.  receives 

in  the  habit  of  sending  raw  hides  to  Buzzard's  tannery,  and  get-  tanked  lea- 
ting  tanned  leather  for  them.     But  he  never  transacted  any  part  turn.  Ty  Ms 


of  these  dealings  in  person;  his  raw  hides  having  been  always  jf™f/;rgeld' 
brought  to  the  tannery,  and  the  tanned  leather  always  sent  to  him  sponsible 
by  his  slaves,  without  any  written  order  from  him,  and,  indeed,  ner  for  the 
without  a  word  passing  between  him  and  Buzzard  on  the  subject.  fofThe  Ta- 
That  since  Buzzard's  death,  Gore  had  dealt  with  two  other  tan-  lue  of  the 

raw    mate- 

ners  in  the  neighborhood,  in  the  same  manner,  through  the  agency  rial  and  the 
of  his  slaves  ;  he  always  sending  his  raw  hides,  and  the  tanners 


sending  back  tanned  leather  bv  the  slaves,  without  written  orders  cl?»  not; 

withstand- 

irom  Gore,  or  a  word  said  by  him  to  the  tanners  ;  and  the  accounts  ing  the 
of  these  tanners  for  the  debts  so  contracted  by  Gore,  through  the 
agency  of  his  slaves,  had  been  settled  by  him  without  dispute  ;  that 
the  items  of  Buzzard's  account,  namely,  the  charges  for  tanned  throughthe 
leather  sent  Gore  by  his  slaves,  and  the  credits  for  raw  hides  Sfs^sJavea, 
brought  by  them,  were  first  set  down  on  a  slate,  and  thence  posted  £  ^auhe" 
in  a  book  by  Buzzard  himself;  but  Gore's  dealings  with  Buzzard,  slaves  act- 
as  charged  in  those  accounts,  amounted  to  about  the  same  per  directions* 
annum,  as  his  dealings  with  the  other  two  tanners  afterwards  ;  that,  of  their 

'    master. 

in  fact  it  was  the  habit  of  Gore  to  send  his  raw  hides  to  some  tan 
nery,  and  to  receive  tanned  leather  in  exchange,  by  his  slaves,  only 
giving  verbal  directions  to  them,  to  deliver  the  raw  hides,  and  bring 
back  what  tanned  leather  he  wanted  ;  that  after  Buzzard's  death, 
Gore  desired  a  witness  to  apply  to  his  administrators  for  his  ac 
count  ;  which  being  sent  him,  he  examined  it,  and  said  he  would 
not  pay  interest  which  the  administrators  had  charged,  but  that  if 
they  would  give  him  the  credits  he  was  entitled  to,  he  would  pay 
the  principal,  if  any  should  be  due  ;  and  that  Gore  procured  the 
assignment  of  a  bond  of  one  of  Buzzard's  administrators,  saying, 
he  expected  the  amount  of  that  bond  would  be  enough  to  meet 
the  claim  of  Buzzard's  estate  against  him.  Judgment  WES  rendered 


228  SLAVERY. 

in  favor]  of  Buzzard's  administrators,  and  Gore  appealed  to  this 
court. 

Per  Cur.  Carr,  J.  The  facts  proved  furnish  the  strongest 
grounds  to  infer,  that  for  a  series  of  years,  Gore  was  in  the  habit  of 
getting  his  leather  from  Buzzard's  tannery;  that  though  his  slaves 
were  his  agents,  or  rather  his  instruments  for  carrying  raw  hides 
to  the  tanner,  and  bringing  back  tanned  leather,  yet  it  was  he  who 
sent  the  raw  material  and  received  the  manufactured  article  ;  and 
that  he  was  to  pay  the  difference,  if  any,  between  values  of  what 
he  thus  bought  and  sold. 

When  Buzzard's  administrators  rendered  the  account,  at  Gore's 
instance,  he  examined  it,  and  did  not  object  to  any  of  the  charges 
against  him  ;  he  only  objected  to  the  charge  of  interest,  and  said 
that  if  they  would  give  him  the  credits  he  was  entitled  to,  he  would 
pay  the  principal.  This  was  a  plain  admission  of  the  justice  of  the 
account,  except  as  to  the  interest,  and  as  to  the  credits  he  claimed, 
which,  however,  he  never  attempted  to  prove  ;  and  this  admission 
alone  affords  a  decisive  answer  to  the  whole  argument  for  the  ap 
pellant.  Judgment  affirmed. 

5. 

CHASTAIN  v.  BOWMAN  et  al.    May  T.  1833.    1  Hill's  Rep.  270. 

A  master         Case  against  the  defendants  as  common  carriers.      It  appeared 

State  hi"   *key  owned  a  freight  boat  and  put  their  patroon  on  board  to  receive 

•lave  his  a-  freight  for  transportation  of  goods  as  they  passed  down  the  river. 

The  patroon  received  the  plaintiff's  cotton,  which  was  burnt  before 

it  reached  Augusta. 

The  court  below  charged  the  jury,  that  a  slave  might  be  the 
agent  of  his  master,  and  if  his  agency  was  established,  the  master 
was  bound.     Verdict  for  plaintiff,  and  motion  for  a  new  trial, 
v  Per  Cur.     Johnson,  J.      Is  it  not  questioned,  that  a  master  may 

constitute  his  slave  his  agent,  and  I  cannot  conceive  of  any  distinc 
tion  between  the  circumstances  which  constitute  a  slave  and  a  free 
man  an  agent.  They  are  both  the  creatures  of  the  principal,  and 
act  upon  his  authority.  There  is  no  condition,  however  degraded, 
which  deprives  one  of  the  right  to  act  as  a  private  agent.  Motion 
dismissed. 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE.  229 

6. 

UNIVERSITY,  &c.  AND  OTHERS  v.  CAMBRELING,  March,  T.  1834. 
Yerger's  Term.  Rep.  79. 

This  is  a  writ  of  error,  prosecuted  from  a  decree  rendered  in  the  The  owner 
chancery  court  at  Columbia,  on  the  6th  March,  1832.  The  bill  ?f  aent^ 
states,  that  complainant  is  the  only  heir  at  law  of  Col.  Patton,  a  to  the.  war; 

r  ...  .  rant  issued 

colonel  in  the  North  Carolina  line  during"  the  revolutionary  war.  to  the  slave 
That  Col.  Patton  suffered  and  caused  to  enlist  as  a  musician,  in  the  ry 


service  of  the  United  States,  his  negro  named  Frederick,  who  rendered 
served  during  the  war  by  consent  of  his  master,  and  was  thus  en 
titled  to  a  one  thousand  acre  warrant  for  his  services.  That  on 
the  8th  August,  1821,  a  warrant,  No.  766,  for  one  thousand  acres, 
issued  to  the  University  of  North  Carolina,  for  the  services  of  said 
slave,  reciting  that  he  died  without  heirs,  which  was  assigned  by 
the  University  to  Andrews,  and  by  Andrews  to  John  Terrill.  It 
was  entered  and  surveyed  in  Dec.  1822,  in  the  name  of  John  Ter 
rill,  and  an  amended  bill  was  filed  stating  that  fact.  A  copy  of  the 
warrant  filed  with  the  bill,  shows  the  interest  in  the  warrant  was 
vested  in  John  Terrill.  The  land  was  not  granted  in  September, 
1823,  when  the  bill  was  filed.  The  bill  was  dismissed  by  the  com 
plainant  against  Andrews,  as  he  had  transferred  his  interest,  and  no 
decree  could  be  had  against  him.  The  University  appeared  by 
their  counsel,  and  a  subpoena  and  a  copy  of  the  bill  were  served 
on  Terrill  in  Weakley  county,  and  against  both  parties  the  bill  was 
set  for  hearing  ex  parte. 

At  September  term,  1829,  it  was  ordered,  by  consent  of  the  par 
ties,  that  this  cause  await  the  final  decision  of  the  supreme  court 
of  errors  and  appeals  in  the  cause  of  Ivey  v.  Pinson  ;  and  in  March 
1832,  th  at  su  having  been  decided,  the  chancellor  pronounced  a 
decree  in  favor  of  complainant.  One  of  the  errors  assigned  was, 
that  the  warrant  issued  to  the  slave,  the  property  of  the  complain 
ant's  father,  was  unauthorized  and  void;  and  vested  no  right  in 
the  complainant. 

Per  Cur.  Catron,  Ch.  J.  It  is  contended,  that  the  act  of  1782,  ch. 
3*  sec.  6.,  never  could  have  intended  to  provide  a  permanent  reward 
in  land,  a  home  and  fireside  for  a  slave  incapable  of  holding  pro 
perty,  without  a  will  of  his  own,  and  who,  from  his  political  and 
moral  condition,  it  was  impossible  to  reward.  This  argument  has 
great  force  in  it  ;  but  it  is  addressed  to  us  in  vain.  The  board  of 
commissioners  of  North  Carolina  has  construed  the  act  of  1782, 
and  adjudged  that  negro  Frederick,  for  his  services  ag  a  musician 


230  SLAVERY. 

in  the  continental  line,  was  entitled  to  one  thousand  acres  of  land. 
By  the  act  of  1804,  ch.  14.,  North  Carolina  reserved  the  exclusive 
right  of  issuing  military  warrants,  although  Tennessee  was  en 
trusted  with  power  to  cause  them  to  be  located.  As  between  the 
soldier  and  North  Carolina,  acting  as  a  sovereign  power  through 
her  commissioners,  the  adjudication  that  Frederick  was  entitled  is 
conclusive.  Pinson  and  Hawkins  v.  Ivey,  1  Yerger's,  Rep.  303. 
328-  346.  350.  So  far,  all  the  judges  concurred  in  Ivey  and  Pin- 
son  ;  and  which  conclusion  is  supported  by  the  decision  of  the 
supreme  court  of  the  United  States,  in  Comegys  v.  Vasse,  1  Peters' 
Rep.  201.  Was  Col.  Patton  entitled  to  the  warrant  issued  for  the 
services  of  his  slave  1  In  Pinson  and  Ivey  it  was  adjudged,  that 
North  Carolina  held  the  military  lands  in  trust  for  the  true  owners. 
To  bestow  them  on  others  was  an  act  in  violation  of  the  trust, 
subject  to  be  set  aside  by  the  ordinary  tribunals  of  justice,  notwith 
standing  the  sentence  of  the  board  of  commissioners  of  that  state. 
Frederick,  the  slave  of  Col.  Patton,  earned  this  warrant  as  a 
musician  in  the  continental  line.  What  is  earned  by  the  slave  be 
longs  to  the  master,  by  the  common  law,  the  civil  law,  and  the 
recognized  rules  of  property,  in  the  slave  holding  states  of  this 
union.  Co.  Litt.  117.,  and  Hargrave's  note  ;  Cooper's  Justinian, 
411.;  Tucker's  Black,  part  2.,  appendix  55.  North  Carolina  held 
as  trustee  for  Col.  Patton,  and  after  his  death,  for  his  heir,  Mrs. 
Cambreling.  John  Terrill,  having  purchased  an  equitable  title,  is 
subject  to  the  same  equities  of  his  vendor  as  was  adjudged  in  Ivey 
and  Pinson,  and  is  the  settled  law  of  the  courts  of  chancery.  Craig 
v.  Leiper,  2  Yerger's  Rep.  193.  Owen's  heirs  v.  Stubblefield  and 
others,  Sparta,  1833.  The  decree  will  be  affirmed,  with  costs. 

(B.)    FOR    HIS    NEGLIGENCE,    WHEREBY    OTHERS    ARE    INJURED. 

WINGIS  v.  SMITH.    Nov.  T.  1825.  3  M'Cord's  Rep.  400. 
Summary  process  against  the  defendant  for  the  negligence  of  his 
not  liable    servant.     It  appeared  the  slave  drove  his  master's  coach  and  left 
ges  from    it  standing  at  the  door  in  the  street,  when  the  horses  became  fright- 
tbeenc"e^J!"    ened,  ran  away,  and  broke  the  plaintiff's  bread  cart. 
his  slave.          The  court  below  supposed  the  accident  to  be  owing  to  the  gross 
negligence  of  the  servant  in  not  continuing  on  the  box  of  the  coach 
and  watching  his  horses,  and  that  the  master  was  liable  therefor. 
The  defendant  appealed  to  this  court. 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE.  231 

Per  Cur.  Nott,  J.  After  referring  to  the  civil  law,  where  a 
person  was  allowed  what  was  called  actio  noxalis,  by  which  a  master 
was  made  liable  for  any  damage  done  to  another  by  his  slave,  such 
as  theft,  robbery,  or  any  other  damage,  Cooper's  Justinian,  354., 
and  to  Puffendorff,  book  3.,  Grotius,  lib.  2.  ch.  17.  375.  This 
point  has  been  settled  by  our  own  courts  in  the  case  of  Snee  v. 
Trice,  2  Bay's  Rep.  345.  In  that  case,  the  defendant's  negroes 
had  suffered  a  fire  to  break  out  from  the  field  where  they  were  at 
work,  and  to  burn  up  the  plaintiff's  crib  of  corn.  The  court  held, 
that  the  defendant  was  not  liable  for  the  negligence  of  his  servants. 
And  the  question  was  decided  upon  general  principles,  and  not 
upon  the  particular  circumstances  of  the  case.  Whether  the  re 
sult  of  the  negligence  be  the  burning  of  the  crib  of  corn,  or  the 
breaking  of  a  cart,  the  principle  would  be  the  same.  The  rule, 
however,  does  not  extend  to  slaves  who  are  tradesmen,  carriers, 
&c.,  for  there  the  master's  security  for  their  faithful  performance 
of  their  duty  depends  upon  his  holding  them  out  as  capable  of  per 
forming  the  work  or  business  undertaken. 


(C.)    FOR    TORTS    AND    CRIMES    COMMITTED    BY  THE  SLAVE. 

1. 

GURRIERE  v.  LAMBETH.  April  T.  1836.    9  Louisiana  Rep.  339. 

The  plaintiff  brought  an  action  of  damages  against  the  defend 
ant,  and  alleged,  that  he  rented  a  store  of  the  defendant,  and  while  Themaster 

is  liable  for 

he  was  absent,  the  defendant  ordered  one  of  his  slaves  to  nail  up  a  acts  and  in- 
back  window  of  the  store  to  vex  and  harass  him,  the  said  plaintiff;  ly^'hiT6 
and  the  slave,  in  nailing  up  the  window,  spilt  a  large  quantity  of  mave'eitnct~ 
ink  on  the  goods  of  the  plaintiff,  and  damaged  them.  Verdict  for  by  or  with- 

i   .    ^.^          i    -I    /•      T  out  his  au- 

plaintin,  and  defendant  appealed.  thority,and 

Per  Cur.  Bullard  J.     A  bill  of  exceptions  was  taken  to  the  ' 


refusal  of  the  judge  to  instruct  the  jury,  at  the  request  of  defendant's  £.es  occa~ 

.     .  sioned  by 

counsel,  that  the  plaintiff  could  not  recover,  unless  it  was  proved  his  offence, 
that  the  act  from  which  the  injury  resulted,  was  done  by  the  order          "*  ° 


*  The  court  held,  in  Snee  v.  Trice,  2  Bay's  Rep.  345.,that  a  master  is  responsible 
for  the  acts  of  his  servants  and  slaves,  in  all  cases  in  the  way  of  trade,  or  public  em 
ployment,  or  where  any  injury  is  occasioned  to  another  by  any  act  done  by  a  ser 
vant,  in  pursuance  of  his  master's  directions,  but  not  for  unauthorized  proceedings  ; 
and  it  seems  that  the  English  law,  which  holds  masters  responsible  for  the  negli* 
gence  of  their  servants,  is  not  applicable  to  slavery. 


232  SLAVERY. 

and  authority  of  the  defendant,  or  with  his  knowledge  and  appro 
bation  ;  and  that  even  his  subsequent  knowledge  and  approbation 
of  such  act  would  not  make  him  responsible.  But  the  court 
charged,  that  the  master  was  responsible  if  the  damage  had  been 
caused  by  the  slave,  acting  either  by  or  without  the  master's  order. 
We  are  of  opinion,  the  court  did  not  err.  The  civil  code  declares, 
that  "the  master  shall  be  answerable  for  all  the  damages  oc 
casioned  by  an  offence,  or  quasi  offence  committed  by  his  slave, 
independent  of  the  punishment  inflicted  on  the  slave."  ArJ.  180. 

2. 

STATE  v.  FRANCIS  ANONE.  May  T.  1819.  2  Nott  &  M'Cord's 
Rep.  27.;  S.  P.  SNEE  v.  TRICE,  2  Bay's  Rep.  345.;  STATE 
v.  DAWSON,  2  Bay's  Rep.  360. 

The  extent  ^er  ^ur-  Richardson,  J,  The  law  is  well  settled,  both  in  this 
state  and  abroad>  !^at  a  master  is  not  liable  for  the  acts  of  his  ser 
vants  unless  done  by  his  authority  ;  and  that  the  principal  is  not 
liable  for  the  criminal  acts  of  his  mere  civil  agents  we  fully  recog 
nize.  And  he  cited  Middletown  v.  Fowler,  1  Salk.  Rep.  282.; 
M'Manusv.  Cricket,  1  East's  Rep.  106. 

3. 

KETTLETAS  v.  FLEET.  Feb.  T.  1811.    7  John's.  Rep.  324. 
A    written       This  was  an  action  to  recover  the  price  of  a  negro  boy  sold  by 
by  a  master  the  plaintiff  to  the  defendant.     The  defendant  gave  notice,  with  the 
slave  to      general  issue,  that  he  would  give  in  evidence,  that  the  plaintiff  had 
manumit      promised  the  boy  in  writing,  that  he  would  manumit  him  in  eisrht 

him  is  obh-    l  ' 

gatory— it  years  from  a  certain  period,  upon  condition  of  his  faithful  service 
nenevo-  °  during  that  period  ;  and  that  the  plaintiff  had  no  right  to  transfer 
ntrtmcor?  l^e  k°v  ^or  a  l°nger  period.  The  jury,  under  a  charge  from  the 
tract.  court,  found  for  the  defendant. 

On  a  motion  for  a  new  trial  it  was  contended,  that  the  writing 
was  not  obligatory. 

Per  Cur.  The  covenant  of  the  plaintiff  to  manumit  the  negro 
in  eight  years,  on  condition  of  faithful  service,  was  one  that  the 
slave  could  avail  himself  of  if  the  condition  was  fulfilled.  What 
was  said  by  the  court  in  the  case  of  negro  Tom,  5  Johns.  Rep.  365., 
is  to  that  effect.  The  manumission  of  a  slave  does  not  rest  upon 
the  principles  of  a  contract,  depending  upon  a  consideration  ;  but 
it  is  an  act  of  benevolence,  sanctioned  by  the  statute,  and  made 
obligatory,  if  in  writing. 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE.  233 

4. 

STEVENSON  v.  SINGLETON.     Feb.  T.  1829.     1  Leigh's  Rep.  72. 

Gibbon  made  a  contract  with  his  slave  Singleton,  that  he  would  Chancery 

cannot  en- 

emancipate  him  on  the  slave's  paying  him  one  thousand  dollars,  force  a 
and  the  slave  paid  him  $566.     But  no  deed  of  emancipation  was  between 

executed  by  Gibbon.  ™aster  aLn<} 

J  slave,    tho' 

Per  Cur.    Cabell,  J.    In  the  case  of  Sawney  v.  Carter,  6  Rand's  the  slav® 
Rep.  173.,  the  court  refused,  on  great  consideration,  to  enforce  a  his  part. 
promise  by  a  master  to  emancipate  his  slave,  where  the  conditions 
of  the  promise  had  been  partly  complied  with  by  the  slave.      It  is 
impossible  to  distinguish  that  case  from  this.     The  court  proceeded 
on  the  principle,  that  it  is  not  competent  to  a  court  of  chancery  to 
enforce  a  contract  between  master  and  slave,  even  although  the  con 
tract  should  be  fully  complied  with  on  the  part  of  the  slave. 

5. 
EMERSON  v.  ROWLAND  et  al.     May  T.  1816.     1    Mason's   Rep. 

45. 

The  plaintiff  shipped  his  slave  on  board  the  Ann  Alexander,  for  Where  a 
Norfolk  to  Liverpool,  and  from  thence  to  ports  in  Europe.     The  slave  is  dis- 
ship  was  captured  on  her  passage  from  Liverpool  to  Archangel  in 


Russia,  and  carried  into  Norway,  and  the  slave  discharged  by  his  board   a 
own  consent.     The  ship  was  restored,  and  arrived  in  Boston,  when  ly,  the  mas- 


this  suit  was  commenced  by  the  master  for  his  wages. 

Per  Cur.     Story,  J.     Capture  does  not  dissolve  the  contract  for  fheesti^pe  to 
wages.     The.  slave  could  not  consent  to  be  discharged.     The  con-  when   he 
tract  was  entered  into,  by  the  owner  in  Virginia,  and  must  be  con-  ^turnedlo 
strued  with  reference  to  the  lex  loci  contract™.     In  Virginia,  slavery  tgteat<^nited 
is  expressly  recognized,  and  the  rights  founded  upon  it,  are  incor 
porated  into  the  whole  system  of  the  laws  of  that  state.   The  owner 
of  the  slave  has  the  most  complete  and  perfect  property  in  him. 
The  slave  may  be  sold,  or  devised,  or  pass  by  descent,  in  the  same 
manner  as  other  inheritable  estate.     He  has  no  civil  rights  or  pri 
vileges.     He  is  incapable  of  making  or  discharging  a  contract,  and 
the  perpetual  right  to  his  services  belongs  exclusively  to  his  owner. 
The  slave    was  illegally   discharged,    and  the  master   is  entitled 
to  recover  his  full  wages  up  to  the  time  when  he  might  have  re 
turned  to  the  United  States. 
30 


234 


SLAVERY. 


An  owner 
who  has 
notice  of  a 
capital 
charge    a- 
gainst  his 
slave,  in 
case    of  a 
conviction 
is  not  only 
bound    to 
pay  the 
prison  fees, 
bulalso  the 
fee  allowed 
by  the  act 
of  1797, 
(Rev.  ch. 
484.)  for 
carrying 
the    sen 
tence  into 
execution. 


The  owner 
may  be 
prosecuted 
civilly  for 
damages 
for  theft, 
&c.  of  his 
slave  be 
fore   a  cri 
minal   pro 
secution   is 
instituted. 


6. 

THE  STATE  v.  JONES.     Dec.  T.  1828.     2  Devereaux's  North 
Carolina  Rep.  48. 

Negro  Charles,  the  property  of  the  defendant,  had  been  convicted 
of  a  rape,  and  executed. 

A  question  was  made  before  his  honor  Judge  Norwood,  whether 
the  defendant,  as  the  owner  of  the  slave,  was  liable  to  his  prison 
charges,  and  to  the  fee  often  dollars  allowed  for  carrying  the  sen 
tence  of  death  into  execution.  Both  questions  were  decided  for 
the  state,  and  the  defendant  appealed. 

Per  Cur.  Hall,  J.  From  the  two  acts  of  assembly  recited  in 
the  case  of  the  State  v.  Isaac,  decided  at  this  term,  2  Dev.  Rep. 
47.,  the  defendant,  Jones,  the  owner  of  the  slave,  is  liable  for  the 
costs  of  prosecution  against  him,  because  if  the  slave  had  been  a 
freeman,  his  estate  would  be  liable.  With  respect  to  the  fee  of 
£5  for  executing  Charles,  it  is  included,  I  think,  in  the  costs  of 
prosecution.  In  the  act  of  1797,  (Rev.  ch.  484,)  amongst  other 
fees  to  which  the  sheriff  is  entitled,  for  apprehending  and  carrying 
criminals  to  jail,  ten  shillings  is  allowed  for  carrying  any  sentence 
or  decree  of  the  court  into  execution,  where  the  convict  is  to  be 
corporally  punished,  and  £5  for  the  execution  and  decent  burial  of 
any  one.  By  the  same  act,  provision  is  made  for  the  payment  of 
such  fees  by  the  state,  provided  they  cannot  be  got  out  of  the  estate, 
or  body  of  the  prisoner. 

But  it  declares,  that  no  such  claim  shall  be  allowed,  until  a  fieri 
facias  shall  have  issued  to  the  county  in  which  the  prisoner  may 
be  supposed  to  have  owned  property,  and  the  sheriff's  return  there 
on,  that  nothing  was  to  be  found,  nor  until  a  capias  ad  satisfacen- 
dum,  shall  have  issued,  and  if  it  was  executed  upon  the  body  of 
the  criminal,  not  until  he  discharged  himself  by  taking  the  oath  of 
insolvency.  From  this  act  it  appears  that  the  estate  of  the  slave 
would  be  liable  m  case  he  was  a  freeman.  It  follows,  of  course, 
that  his  owner  is  so.  Judgment  affirmed. 

7. 
MOFFIT  v.  VION.    March  T.  1833.    5  Louisiana  Rep.  346. 

The  plaintiff  sued  the  defendant  to  recover  the  value  of  goods 
stolen  from  his  store  by  the  defendant's  slave.  The  defendant  ex- 
cepted  on  the  ground,  that  no  previous  criminal  prosecution  of  the 
slave  had  taken  place.  The  judge  sustained  the  exception  and 
dismissed  the  petition.  Plaintiff  appealed. 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE.  235 

Per  Cur.  MatheiDs,  J.  In  pursuance  of  the  articles  of  the  code 
we  are  of  opinion,  that  a  person  who  suffers  damages  by  the  theft? 
or  robbery  of  a  slave,  may  proceed  immediately  and  directly  against 
the  owner  of  such  slave,  and  obtain  judgment  in  the  civil  suit,  to 
ascertain  the  amount  of  damages  without  a  previous  criminal  pros 
ecution  ;  and  that,  on  a  judgment-  thus  rendered,  an  execution 
regularly  issue,  unless  the  owner  of  the  slave  should  choose  to 
abandon  within  three  days  after  the  rendition  of  the  judgment. 

8. 

THE  STATE  v.  ISAAC.    Dec.    T.   1828.     2  Devereaux's   North 
Carolina  Rep.  47. 

An  indictment  for  murder  had  been  found  against  the  prisoner,  where  a 
a  slave.     On   the  last  circuit,  a   nolle  prosequi  was  entered  ;  and  jjj*™  cjj|* 
upon  the  motion  of  the  owner,  who  had  been  duly  notified  of  the  ned  in  jail 
charge,  the  prisoner  was  discharged.     But  his  honor,  Judge  Mar-  diriment"1 
tin,  ordered  the  jail  fees  and  other  costs  to  be  paid  by  the  owner,  anTTrwSe 
from  which  the  latter  appealed  to  this  court.  prosequi  is 

entered, 


Per  Cur.    Hall  J.   By  the  act  of  1793,  (Rev.  ch.  381,  sec.  2,)  it  the 

having  had 

is  declared,  that  where  a  slave  is  charged  criminally,  his  owner,  due  notice 
provided  he  has  notice  of  it,  is  bound  to  pay  all  costs  attending  the  charge6  is 
trial,  provided  also,  that  the  slave,  if  a  freeman,  would  be  liable  to  1JaW?  un~ 
pay  them.  of  1793  and 

By  the  act  of  1795,  (Rev.  ch.  433.  sec.  7,)  it  is  declared,  that  (R9ey.  ch. 
every  person  who  shall  be  committed  to  a  public  jail,  by  lawful  au-  |81andC'ch 
thority,  for  any  criminal  offence,  or  misdemeanor  against  the  state,  433.  sec.  7.) 
shall  bear  all  reasonable  charges  for  carrying  and  guarding  them  to  fees,  as 
the  said  jail,  and  also  for  their  support  therein,  until  lawfully  released,  ^^costs6 
And  all  the  estate  which  the  person  possessed  at  the  time  of  commit 
ting  the  offence,  shall  be  subject  to  the  payment  of  the  aforesaid 
charges  and  other  prison  fees,  in  preference  to  all  other  demands. 

From  these  acts  of  the  Legislature,  it  appears  that  Isaac,  if  a 
free  man,  would  be  liable  for  his  prison  fees,  and,  consequently,  his 
owner  is  bound  for  them.  Judgment  affirmed. 

9. 
CALDWELL  v.  SACRA.     Spring  T.  1811.     6  Littell's  Rep.  118. 

Per  Cur.     Logan,  J.     In  an  action  of  trepass  against  Caldwell,  A  man  is 
upon  the  allegation  that  he  had,  or  caused  to  be,  tied  to  the  tail  of  j^aw*" 

a  certain  horse  of  the  plaintiff,  large  sticks  of  wood,  and  had  so  committed 

by    ma 

beat  and  caused  the  said  horse  to  run  as  thereby  to  occasion  his  slave. 


236  SLAVERY. 

death.     Upon  the  plea  of  not  guilty,  the  plaintiff  proved  the  death 
of  the  horse,  occasioned  by  the  sticks  which  had  been  tied  to  his 
tail,  and  the  confession  of  Caldwell,  that  his  negro  boy  had  tied 
sticks  to  the  horse's  tail,  the  horse  having  frequently  broken  into 
his  wheat  field.     Upon  being  then  informed  by  the  witness  that  he 
had  understood  the  horse  had  died  from  the  abuse  occasioned  by 
the  sticks  which  had  been  tied  to  his  tail,  Caldwell  replied  that 
he  was  glad  of  it.     Verdict  for  the  plaintiff,  and  motion  for  a  new 
trial.     There  is  no  point  of  difficulty  in  the  cause.     For  whether 
the  conduct  of  the  slave  was  under  the  direction  or  sanction  of  the 
master,  is   not  material  ;    or  whether  the   master's  direction    or 
sanction  thereof  is  tested  by  his  express  command,  or  by  his  pre 
sence,  and  not  forbidding  the  act ;   or  by  other  circumstances  evin 
cing  his  approbation,  is  equally  immaterial.     He  is  in  either  case 
liable.     For  the  law  is,  if  one  agree  to  a  trespass  which  has  been 
committed  by  another  for  his  benefit,  this  action  lies  against  him, 
although  it  was  not  done  in  obedience  to  his  command,  or  at  his 
request.     Bac.  Abr.  185.  sect.  4.  title  Trepass.     A  fortiori,  ought 
the  master  of  a  slave  to  be  liable  in  such  case  for  the  trespass  of 
the  slave. 

10. 
CAWTHORN  v.  DBAS.    June  T.  1835.      2  Porter's  Rep.  276 

Themaster  The  plaintiff  sued  the  defendant  in  trespass,  for  an  injury  to  his 
is  not  lia^  property  caused  by  the  negligent  conduct  of  the  defendant's  slaves. 

ble  for  m-       The   court  charged  the  jury,   that  it  was  not  essential  for  the 

juries  cau-          >  J      J9 

sed  by  the  plaintiff  to  prove  that  the  slaves  acted  under  their  master's  authority  ; 

conduct" of  hut  that  in  presumption  of  law,  slaves  were  always  under  their 
when.aV<not  master's  control,  and  that  he  was  liable  for  their  negligent  conduct, 
acting  in  Verdict  for  plaintiff. 

ployment,         Per  Cur.      Thornton,  J.     The  judgment  must  be  reversed.      By 

his  auth\>r  *ne  common  law  the  master  is  only  liable  for  torts  done  in  the  ex- 

rity-  ecution  of  his  authority,   or  for  damage  flowing  from  negligent 

conduct  in  his  employment.  But,  according  to  the  civil  law,  though 

the  master  be  liable  for  any  injury  or  damage  done  by  the  slave, 

yet  that  liability  is  limited  to  the  value  of  the  slave,  it  being  always 

in  the  option  of  the  master  to  pay  the  estimate  of  the  damage  done, 

or  surrender  the  body  of  the  slave  as  a  recompense.     We  adopt 

the  common  law  as  applied  to  master  and  servant. 


LIABILITIES  OF  MASTER  FOR  ACTS  OF  SLAVE-  237 

11. 

SAWNEY  v.  CARTER.     March    T.    1828.     6  Rand's  Rep.  173.; 
S.  P.  STEVENSON  v.  SINGLETON,    1  Leigh's  Rep.  72. 

Per  Cur.       Coalter,  J.     The  pauper,  in   this  case,   claims  his  A  court  of 

freedom  on  an  alleged  contract  between  his  master  and  him,  H    the  no"enforce 

time  he  was  purchased   at  an  executor's  sale,  that   on  paying  his  a  contract 

r   J  between 

purchase  money,  he  should  be  free.     Ke  alleges,  that  he  has  paid  master  and 

accordingly  ;  but  that  his  master  would  not  emancipate  him.   The  whereby 


proof  of  the  contract  is  by  no  means  clear  ;  although,  if  that  was 

proved,  and  such  a  contract  could  be  enforced  in  equity,  there  is  he  win 

•mancipate 

proof  enough  in  the  record,  of  his  master   having  received  some  his  slave 

after  a   cer- 

property,  to  wit,  a  wagon    and   three   horses,  which  the   pauper  tain  condi- 
claimed  as  his  own,  and  the  proceeds  of  his  earning  by  wagoning,  ^^3™ 
to  send  the  case  to  an  account.     There  is   no  case   in  this  court,  ™hich  9°«- 

i        T  ~          .  dition  has 

that  1  can  find,  justifying  the  idea  that  a  court  of  equity   can  en-  been  corn- 

force   such  a  contract;  but,  the  reverse  has  been  decided,  as  will  by^the 

be  seen  hereafter.     There  is  no  doubt  that  a  court  of  equity  may  slave' 

entertain  a  bill,  where  the  party  has  been  detained  in  slavery,  and 

has  a  legal  title  to  his  freedom  ;  but  there  is  some  impediment  to 

the  assertion  of  that  right  at  law,  which  would,  in  any  other  case, 

justify  the  interposition   of  a  court  of  equity.     As,  if  the  will,  by 

which  he  was   emancipated,   was  fraudulently  suppressed  or  de 

stroyed  ;  or  a  deed,  prior  to  that  of  emancipation,  and  which  had 

been  abandoned,  was  fraudulently  set  up  as  a  bar  to  the  recovery 

at  law  ;  as  was  lately  decided  in  the  case  of  Talbert  v.  Jenny,  6 

Rand's  Rep.  59.     In  the  case  of  Dempsey  v.  Lawrence,  Gilm's 

Rep.  333.,  the  pauper  was  not  so  before  the  court,  as  that  the  mer 

its  could  be   decided,  either  by  the  court  below,  or  by  this  court. 

The  bill  was  dismissed  ;  and  this  court  only  sent  the  case  back,  to 

be  placed   in  a  situation  in  which  it  could  be  tried   on  the  merits. 

How  this   court  would  have  decided,  could  the  merits  have  been 

gone  into,   cannot,  therefore,  be  known  ;   and,  consequently,    that 

case  can  give  no  rule  in  this.     The  case  of  John  Rose,  a  pauper, 

v.  Haxwell,   adm'r  of  Duncan   Rose,  juu.,  was   decided   in  this 

court   against  the  pauper.     That  was  a  very  strong  case  for  the 

pauper,  as  I  find  by  my  note  of  it,  though  I  was  not  present  when 

it  was  decided.     According   to  these  notes,  it  appears,   that  this 

man  belonged  to  the  estate  of  the  late  Col.  Banister,  near  Peters 

burg  ;  that  he  was  the  son  of  Duncan   Rose,   the  elder,  who,  on 


238  SLAVERY. 

bis  death  bed,  recommended  him  to  the  care  of  his  nephew,  the  in 
testate  of  the  appellee.  On  the  sale  of  Banister's  estate,  he  was 
purchased  by  Dr.  Wilson  for  90Z.,  who  sold  him  to  the  intestate 
for  the  same  sum.  The  intestate  then  put  him  apprentice  to  a  car 
penter.  After  his  apprenticeship,  he  worked  as  a  journeyman, 
and  down  to  the  death  of  the  intestate,  worked  for  himself,  and 
was  treated  as  a  freeman  by  his  employer,  who  paid  him  his  earn 
ings.  The  intestate  frequently  admitted  that  he  was  free,  and  said 
that  he  had  paid  him  his  purchase  money,  and  more  ;  and  never 
interfered  with  him  as  a  slave.  His  administrator  always  consid 
ered  him  as  free  ;  but  finding  that  he  had  not  been  emancipated 
by  deed,  and  not  knowing  but  that  he  would  be  taken  to  pay 
debts,  considered  it  his  duty  to  take  him  as  a  slave.  He  says  he 
is  not  hostile  to  his  claim  to  freedom  ;  but  suggests,  for  the  consid 
eration  of  the  court,  whether  a  contract  for  freedom  can  be  set  up 
in  a  court  of  equity,  and  whether  any  other  mode  of  emancipation 
than  that  prescribed  by  law,  can  be  sustained.  By  the  act  of  May, 
1723,  4  stat.,  at  Large,  132.,  it  is  enacted,  that  no  negro,  mulatto, 
or  Indian  slave,  shall  be  set  free  on  any  pretence  whatever,  except 
for  some  meritorious  service,  to  be  adjudged  and  allowed  by  the 
governor  and  council,  and  license  therefor  first  had  and  obtained  ; 
that  if  they  shall  be  otherwise  set  free,  it  shall  be  lawful  for  the 
churchwardens,  and  they  are  required,  to  take  them  up  and  sell 
them  as  slaves,  &c.  This  is  re-enacted  by  the  act  of  October, 
1748,  6  stat.,  at  Large,  112.  By  the  act  of  May,  1782,  11  stat., 
at  Large.,  39,  reciting,  that  application  had  been  made  to  empower 
persons  disposed  to  emancipate  their  slaves  to  do  so,  it  is  enacted 
that  it  shall  hereafter  be  lawful  for  any  person,  by  his  last  will  and 
testament,  or  by  any  other  instrument  in  writing,  under  his  or  her 
hand  and  seal,  attested  and  proved  in  the  county  court  by  two  wit 
nesses,  &c.,  to  emancipate  his  slaves,  or  any  of  them,  &c.  This 
act  is  brought  into  the  revision  of  1794,  ch.  103.,  sec.  36.,  by 
the  26th  section  of  which,  1  Rev.  Code,  433,  it  is  made  unlawful 
to  permit  slaves  to  go  at  large,  and  hire  themselves  out,  under 
penalty  of  being  apprehended  and  sold  ;  and  is  also  brought  into 
that  of  3819.  sec.  53.,  p.  433. 

It  has  also  been  decided  by  this  court,  that  a  deed  of  emancipa 
tion,  not  recorded  in  the  proper  court,  but  in  some  other,  gives  no 
title  to  freedom,  until  properly  recorded.  Givens  v.  Mann,  6 
Munf.  Rep.  191.;  Lewis  v.  Fullerton,  1  Rand's  Rep.  15. 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  <fec.  239 

(XVII.)   OF  THE   LIABILITY  OF  OTHERS  TO  THE 
MASTER  FOR  ABUSING  HIS  SLAVE. 

(A.)   BY  ASSAULTING,  BEATING,  OR  HARBORING  HIM. 

1. 

CORNFUTE  v.  DALE.    April  T.  1800.    1  Har.  &  John's.  Rep.  4. 

This  was  an  action  of  trespass  for  an  assault  and  battery  com-  Trespass 
mitted  by  the  defendant  on  the  plaintiff's  slave.  T 


It  was  contended,  that  the  action  could  be  sustained,  and  that  it  foranas- 

-  .  sault  and 

was  not  necessary  to  prove  a  loss  of  service  ;  that  an  action  might  battery  on 
be  supported  for  beating  the  plaintiff's  horse,  2  Lutw.  1481  ;  20  SlS^t'be 
Viner's  Abr.  454  :  and  that  the  lord  might  have  an  action  for  the  attended 

with  a  loss 

battery  of  his  villein  which  is  founded  on  this  principle,  that  as  the  of  service. 
villein  could  not  support  the  action,  the  injury  would  be  without 
redress  unless  the  lord  could.     On  the  other  side,  it  was  said,  that 
Ld.  Ch.  J.  Raymond  had  decided,  that  an  assault  on  a  horse  was 
no  cause  of  action,  unless  accompanied  with  a  special  damage. 

Ch.  J.  Chase  assigned,  among  other  reasons,  for  the  decision  in 
favor  of  the  defendant,  that  the  action  did  not  lie,  because  there 
was  not  a  reciprocity  of  action  ;  no  action  being  maintainable 
against  a  master  for  an  assault  and  battery  committed  by  his  slave  ; 
and  that  the  injury  to  the  slave  was  not  dispunishable,  it  being  in 
dictable  as  an  offence  ;  and  that  without  an  injury  or  wrong  to 
the  master,  no  action  could  be  sustained.  And  see  Belmore  v. 
Caldwell,  2  Bibb's  Rep.  76,  where  the  court  say,  that  actual  pos 
session  of  the  slave  by  the  master  is  necessary  to  entitle  him  to  an 
action  of  trespass  for  beating  him. 

2. 
SMITH  v.  HANCOCK.     4  Bibb's  Rep.  222. 

Held  by  the  court,  that  in  an  action  of  trespass  for  beating  a  slave,  Justifica- 
the  property  of  the  plaintiff,  whereby  he  died,  the  defendant  may  tlon  of' 
justify  by  showing  that  the  slave  was  at  an  unlawful  assembly  com 
bining  to  rebel,  and  that  he  refused  to  surrender,  and  resisted  by 
force.  . 

3. 
STATE  v.  HALE.     Dec.    T.  1823.  2  Hawk's  North  Carolina 

Rep.  582.  A  battery 

.  committed 

was  an  indictment  charging  the  defendant  with  having  on  a  slave, 


240  SLAVERY. 


nojustifica-  committed  an  assault  on  a  slave,  and  with  inhumanly  beating 
wounding,  &c.  The  jury  found,  that  the  defendant  committed 
Persona^  violence  on  the  slave,  mentioned  in  the  indictment,  by 


shown,  is.    striking  him  ;    and  whether  this  amounted  to  the  offence  charged, 

an  indicta 

ble  offence,  they  referred  it  to  the  court  to  decide.     The  judge  below  rendered 
judgment  for  the  defendant,  and  the  state  appealed. 

Taylor,  Ch.  J.  The  indictment,  in  this  case,  is  for  an  inhuman 
assault  and  battery,  but  the  special  verdict  states,  that  the  defend 
ant  struck  the  slave.  The  question,  therefore,  presented  to  the 
court,  is,  whether  a  battery,  committed  on  a  slave,  no  justification, 
or  circumstances  attending  it  being  shown,  is  an  indictable  of 
fence.  As  there  is  no  positive  law,  decisive  of  the  question,  a 
solution  of  it  must  be  deduced  from  general  principles,  from  rea 
sonings  founded  on  the  common  law,  and  adapted  to  the  existing 
condition  and  circumstances  of  our  society,  and  indicating  that  re 
sult  which  is  best  adapted  to  general  expedience.  Presumptive 
evidence  of  what  this  is,  arises,  in  some  degree,  from  usage,  of 
which  the  legislature  must  have  been  long  since  apprised,  by  the 
repeated  conviction  and  punishment  of  persons  charged  with  this 
offence.  It  would  be  a  subject  of  regret  to  every  thinking  person, 
if  courts  of  justice  were  restrained,  by  any  austere  rule  of  judica 
ture,  from  keeping  pace  with  the  march  of  benignant  policy  and 
provident  humanity,  which  for  many  years  has  characterised  every 
legislative  act  relative  to  the  protection  of  slaves,  and  which  Chris 
tianity,  by  the  mild  diffusion  of  its  light  and  influence,  has  contri 
buted  to  promote  ;  and  even  domestic  safety  and  interest  equally 
enjoin. 

The  wisdom  of  this  course  of  legislation  has  not  exhausted  itself 
on  the  specific  objects  to  which  it  was  directed,  but  has  produced 
wider  and  happier  consequences,  in  securing  to  this  class  of  persons, 
milder  treatment  and  more  attention  to  their  safety.  For  the  very 
circumstance  of  their  being  brought  within  the  pale  of  legal  pro 
tection  has  had  a  corresponding  influence  upon  the  tone  of  public 
feeling  towards  them  ;  has  rendered  them  of  more  value  to  their 
masters,  and  suppressed  many  outrages,  which  were  before  but  too 
frequent.  It  is,  however,  objected  in  this  case,  that  no  offence  has 
been  committed,  and  the  indictment  is  not  sustainable,  because  the 
person  assaulted  is  a  slave,  who  is  not  protected  by  the  general 
criminal  law  of  the  state  ;  but  that,  as  the  property  of  an  individual, 
the  owner  may  be  redressed  by  a  civil  action.  But  though  neither 
the  common  law,  nor  any  other  code  yet  devised  by  man,  could 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  241 

foresee  and  specify  every  case  that  might  arise,  and  thus  supercede 
the  use  of  reason  in  the  ordinary  affairs  of  life,  yet  it  furnishes  the 
principles  of  justice  adapted  to  every  state  and  condition  of  society. 
It  contains  general  rules,  fitted  to  meet  the  diversified  relations, 
and  various  conditions  of  social  man.  Many  of  the  most  important 
of  these  rules  are  not  set  down  in  any  statute  or  ordinance,  but  de 
pend  upon  common  law  for  their  support ;  of  this  description  is  the 
rule,  that  breaking  the  public  peace  is  an  offence,  and  punishable 
by  fine  and  imprisonment.  An  assault  and  battery  is  not  indictable 
in  any  case  to  redress  the  private  injury  ;  for  that  is  to  be  effected 
by  a  civil  action  ;  but,  because  the  offence  is  injurious  to  the  citizens 
at  large  by  its  breach  of  the  peace,  by  the  terror  and  alarm  it  ex 
cites,  by  the  disturbance  of  that  social  order  which  is  the  primary 
object  of  the  law  to  maintain,  and  by  the  contagious  example  of 
crimes. 

The  instinct  of  a  slave  may  be,  and  generally  is,  tamed  into  sub 
servience  to  his  master's  will,  and  from  him  he  receives  chastise 
ment,  whether  it  be  merited  or  not,  with  perfect  submission  ;  for 
he  knows  the  extent  of  the  dominion  assumed  over  him,  and  that 
the  law  ratifies  the  claim.  But  when  the  same  authority  is  wan 
tonly  usurped  by  a  stranger,  nature  is  disposed  to  assert  her  rights, 
and  to  prompt  the  slave  to  a  resistance,  often  momentarily  suc 
cessful,  sometimes  fatally  so.  The  public  peace  is  thus  broken,  as 
much  as  if  a  free  man  had  been  beaten,  for  the  party  of  the  aggres 
sor  is  always  the  strongest,  and  such  contests  usually  terminate  by 
overpowering  the  slave,  and  inflicting  on  him  a  severe  chastisement, 
without  regard  to  the  original  cause  of  the  conflict.  There  is, 
consequently,  as  much  reason  for  making  such  offences  indictable, 
as  if  a  white  man  had  been  the  victim.  A  wanton  injury  commit 
ted  on  a  slave  is  a  great  provocation  to  the  owner,  awakens  his 
resentment,  and  has  a  direct  tendency  to  a  breach  of  the  peace, 
by  inciting  him  to  seek  immediate  vengeance.  If  resented  in  the 
heat  of  blood,  it  would  probably  extenuate  a  homicide  to  man 
slaughter,  upon  the  same  principle  with  the  case  stated  by  Lord 
Hale,  that  if  A.  riding  on  the  road,  B.  had  whipped  his  horse  out  of 
the  track,  and  then  A.  had  alighted  and  killed  B.  These  offences  are 
usually  committed  by  men  of  dissolute  habits,  hanging  loose  upon 
society,  who,  being  repelled  from  association  with  well  disposed 
citizens,  take  refuge  in  the  company  of  colored  persons  and  slaves, 
whom  they  deprave  by  their  example,  embolden  by  their  famili 
arity,  and  then  beat,  under  the  expectation  that  a  slave  dare  not 
31 


242  SLAVERY. 

resent  a  blow  from  a  white  man.  If  such  offences  may  be  com 
mitted  with  impunity,  the  public  peace  will  not  only  be  ren 
dered  extremely  insecure,  but  the  value  of  slave  property  must  be 
much  impaired,  for  the  offenders  can  seldom  make  any  reparation 
in  damages.  Nor  is  it  necessary,  in  any  case,  that  a  person  who 
has  received  an  injury,  real  or  imaginary, -from  a  slave,  should 
carve  out  his  own  justice  ;  for  the  law  has  made  ample  and  sum 
mary  provision  for  the  punishment  of  all  trivial  offences  committed 
by  slaves,  by  carrying  them  before  a  justice,  who  is  authorized  to 
pass  sentence  for  their  being  publicly  whipped.  1  Rev.  Code,  448. 
This  provision,  while  it  excludes  the  necessity  of  private  vengeance, 
would  seem  to  forbid  its  legality,  since  it  effectually  protects  all 
persons  from  the  insolence  of  slaves,  even  where  their  masters  are 
unwilling  to  correct  them  upon  complaint  being  made.  The  com 
mon  law  has  often  been  called  into  efficient  operation,  for  the  pun 
ishment  of  public  cruelty  inflicted  upon  animals,  for  needless  and 
wanton  barbarity  exercised  even  by  masters  upon  their  slaves,  and 
for  various  violations  of  deceny,  morals,  and  comfort.  Reason 
and  analogy  seem  to  require  that  a  human  being,  although  the 
subject  of  property,  should  be  so  far  protected  as  the  public  might 
be  injured  through  him. 

For  all  purposes  necessary  to  enforce  the  obedience  of  the  slave, 
and  to  render  him  useful  as  property,  the  law  secures  to  the  master 
a  complete  authority  over  him,  and  it  will  not  lightly  interfere  with 
the  relation  thus  established.  It  is  a  more  effectual  guarantee  of 
his  right  of  property,  when  the  slave  is  protected  from  wanton  abuse 
from  those  who  have  no  power  over  him ;  for  it  cannot  be  disputed, 
that  a  slave  is  rendered  less  capable  of  performing  his  master's  ser 
vice,  when  he  finds  himself  exposed  by  the  law  to  the  capricious 
violence  of  every  turbulent  man  in  the  community. 

Mitigated  as  slavery  is  by  the  humanity  of  our  laws,  the  refine 
ment  of  manners,  and  by  public  opinion,  which  revolts  at  every 
instance  of  cruelty  towards  them,  it  would  be  an  anomaly  in  the 
system  of  police  which  affects  them,  if  the  offence  stated  in 
the  verdict  were  not  indictable.  At  the  same  time  it  is  undeniable, 
that  such  offence  must  be  considered  with  a  view  to  the  actual 
condition  of  society,  and  the  difference  between  a  white  man  and 
a  slave,  securing  the  first  from  injury  and  insult,  and  the  other 
from  needless  violence  and  outrage.  From  this  difference  it  arises, 
that  many  circumstances  which  would  not  constitute  a  legal  pro 
vocation  for  a  battery  committed  by  one  white  man  on  an  other, 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  243 

would  justify  it,  if  committed  on  a  slave,  provided  the  battery  were 
not  excessive.  It  is  impossible  to  draw  the  line  with  precision,  or 
lay  down  the  rule  in  the  abstract ;  but  as  was  said  in  Tacket's  case, 
the  circumstances  must  be  judged  of  by  the  court  and  jury,  with  a 
due  regard  to  the  habits  and  feelings  of  society.  But  where  no 
justification  is  shown,  as  in  this  case,  I  am  of  opinion  the  indict 
ment  is  maintainable. 

Hall,  J.  I  concur  in  the  opinion  given.  I  think  it  would  be 
highly  improper  that  every  assault  and  battery  upon  a  slave  should 
be  considered  an  indictable  offence  ;  because  the  person  making 
it  might  have  matter  of  excuse  or  justification  on  his  side,  which 
could  not  be  used  as  a  defence  for  committing  an  assault  and  bat 
tery  upon  a  free  person.  But  where  an  assault  and  battery  is 
committed  upon  a  slave  without  cause,  lawful  excuse,  or  without 
sufficient  provocation,  I  think  it  amounts  to  an  indictable  offence. 
Much  depends  upon  the  circumstances  of  the  case  when  it  hap 
pens  ;  these  circumstances  are  not  set  forth  in  this  case,  and  I 
think  it  material  that  they  should  appear.  I  therefore  think,  the 
judgment  of  the  court  below  should  be  reversed,  and  a  new  trial 
granted  for  that  purpose. 

Henderson,  J.  concurred. 

4. 

THE  STATE  v.  MANER.  Spring  T.  1834.  2  Hill's  Rep.  453.; 
S.  P.  HILTON  v.  C ASTON,  2  Bailey's  Rep.  98.;  WHITE  v. 
CHAMBERS,  2  Bay's  Rep.  70.;  STATE  v.  CHEATWOOD,  2  Hill's 
Rep.  459. 

Per  Cur.      O'JVea//,  J.     The  criminal  offence   of  assault  and  The   mas- 
battery  cannot,  at  common  law,  be  committed  on  the  person  of  a  J-^  th^baT 
slave.     For  notwithstanding  for  some  purposes  a  slave  is  regarded  teir  of  his 
in  law  as  a  person,  yet  generally  he  is  a  mere  chattel  personal, 
and  his  right  of  personal  protection  belongs  to  his  master,  who  can 
maintain  an  action  of  trepass  for  the  battery  of  his  slave. 

There  can  be  therefore  no  offence  against  the  state  for  a  mere 
beating  of  a  slave  unaccompanied  by  any  circumstances  of  cruelty, 
or  an  attempt  to  kill  and  murder.  The  peace  of  the  state  is  not 
thereby  broken  ;  for  a  slave  is  not  generally  regarded  as  legally 
capable  of  being  within  the  peace  of  the  state.  He  is  not  a  citizen, 
and  is  not  in  that  character  entitled  to  her  protection. 


244  SLAVERY. 

5. 
STATE  v.  MANER.     Spring  T.  1834.     2  Hill's  Rep.  453. 

rondmaPbe  ^^  defendant  was  indicted  for  an  assault  and  battery,  with  an 
intent  to  murder  a  slave.  O'Neal  J.  held,  that  although  at  common 
law  no  indictment  lay  for  an  assault  and  battery  upon  a  slave,  yet 
by  lhe  act°r  lS2l->  Acts,  p.  12.  an  assault  with  an  intent  to  murder 
a  slave  is  indictable.  The  act  of  1821.,  changing  the  murder  of 
a  slave  from  a  mere  misdemeanor,  which  it  was  under  the  act  of 
1740,  to  a  felony,  and  the  attempt  to  commit  a  felony,  whether 
by  statute  or  common  law,  is  a  misdemeanor,  punishable  by  fine 
and  inprisonment,  at  the  discretion  of  the  court. 

6. 

THE  STATE  v.  MANN.  Dec.  T.  1829.  2  Devereaux's  North  Caro 
lina  Rep.  263. 

The  mas-        The  defendant  was  indicted  for  an  assault  and  battery  upon  Lydia, 
lfar^Sto°an  the  slave  of  one  Elizabeth  Jones.    On  the  trial  it  appeared,  that  the 
JbfaS-  defendant  had  hired  the  slave  for  a  year;  that  during  the  term  the 
ry  commit-  slave  had  commilted  some  small  offence,  for  which  the  defendant 
his  slave,     undertook  to  chastise  her ;  that  while  in  the  act  of  so  doing,  the 
slave  ran  off;  whereupon  the  defendant  called  upon  her  to  stop, 
which  being  refused,  he  shot  at  and  wounded  her.     The  judge  in 
the  court  below  charged  the  jury,  that  if  they  believed  the  punish 
ment  inflicted  by  the  defendant  was  cruel  and  unwarrantable,  and 
disproportionate  to  the  offence  committed  by  the  slave,  that  in  law 
the  defendant  was  guilty,  as  he  had  only  a  special  property  in  the 
slave.    A  verdict  was  returned  for  the  state,  and  the  defendant  ap 
pealed. 

Per  Cur.  Ritffin,  J.  A  judge  cannot  but  lament,  when  such 
cases  as  the  present  are  brought  into  judgment.  It  is  impossible 
that  the  reasons  on  which  they  go  can  be  appreciated,  but  where 
institutions  similar  to  our  own  exist,  and  are  thoroughly  understood. 
The  struggle,  too,  in  the  judge's  own  breast  between  the  feelings  of 
the  man,  and  the  duty  of  the  magistrate,  is  a  severe  one,  present 
ing  strong  temptation  to  put  aside  such  questions,  if  it  be  possible. 
It  is  useless,  however,  to  complain  of  things  inherent  in  our  political 
state.  And  it  is  criminal  in  a  court  to  avoid  any  responsibility  which 
the  laws  impose.  With  whatever  reluctance,  therefore,  it  is  done, 
the  court  is  compelled  to  express  an  opinion  upon  the  extent  of 
the  dominion  of  the  master  over  the  slave  in  North  Carolina.  The 
indictment  charges  a  battery  on  Lydia,  a  slave  of  Elizabeth  Jones. 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  245 

Upon  the  face  of  the  indictment,  the  case  is  the  same  as  The  State 
v.  Hall,  2  Hawks'  Rep.  582.     No  fault  is  found  with  the  rule  then 
adopted,  nor  would  be,  if  it  were  now  open.      But  it  is  not  open  ; 
for  the  question  as  it  relates  to  a  battery   on  a  slave  by  a  stranger 
is  considered  as  settled  by  that  case.     But  the  evidence  makes  this 
a  different  case.     Here  the  slave  had  been  hired  by  the  defendant, 
and  was  in  his  possession  ;  and  the  battery  was  committed  during 
the  period  of  hiring.     With  the  liabilities  of  the  hirer  to  the  gene 
ral  owner,  for  an  injury  permanently  impairing   the  value   of  the 
slave,  no  rule  now  laid  down  is  intended  to  interfere.     That  is  left 
upon  the  general  doctrine  of  bailment.  The  inquiry  here  is,  whether 
a  cruel  and  unreasonable  battery  on  a  slave,  by  the  hirer,  is  in 
dictable.      The  judge  below  instructed  the  jury,  that  it  is.     He 
seems  to  have  put  it  on  the  ground,  that  the  defendant  had  but  a 
special  property.     Our  laws  uniformly  treat  the  master  or  other 
person  having  the  possession  and  command  of  the  slave,  as  entitled 
to  the  same  extent  of  authority.     The  object  is  the  same,  the  ser 
vice  of  the  slave ;  and  the  same  powers  must  be  confided.     In  a 
criminal  proceeding,  and  indeed  in  reference  to  all  other  persons 
but  the  general  owner,  the  hirer  and  possessor  of  the  slave  in  rela 
tion  to  both  rights  and  duties,  Is,  for  the  time  being,  the  owner. 
This  opinion  would,  perhaps,  dispose  of  this  particular  case  ;   be 
cause  the  indictment,   which  charges   a    battery  upon  the  slave 
of  Elizabeth  Jones,  is    not  supported  by  proof  of  a  battery  upon 
defendant's   own   slave  ;    since    different    justifications    may    be 
applicable  to  the   two  cases.      But  upon  the  general   question, 
whether  the    owner  is  answerable  criminaliier,  for  a  battery  upon 
his  own  slave,  or   other  exercise   of  authority  or  force,   not  for 
bidden  by   statute,    the   court   entertains   but  little  doubt.     That 
he   is   so   liable,   has    never    been   decided  ;    nor,    as   far  as   is 
known,  been  hitherto  contended.     There   has   been  no  prosecu 
tions  of  the   sort.     The   established   habits  and  uniform  practice 
of  the  country  in  this  respect,  is  the  best  evidence  of  the  por 
tion  of  power   deemed   by   the  whole   community   requisite    to 
the  preservation  of  the  master's  dominion.     If  we  thought  differ 
ently,  we  could  not  set  our  notions  in  array  against  the  judgment 
of  every  body  else,  and  say  that  this,  or  that  authority,  may  be 
safely  lopped  off.  This  has  indeed  been  assimilated  at  the  bar  to  the 
other  domestic  relations  ;   and  arguments  drawn  from  the  well-es 
tablished  principles,  which  confer  and  restrain  the  authority  of  the 
parent  over  the  child,  the  tutor  over  the  pupil,  the  master  over  the 


246  SLAVERY. 

apprentice,  have  been  pressed  on  us.  The  court  does  not  recog 
nise  their  application.  There  is  no  likeness  between  the  cases. 
They  are  in  opposition  to  each  other,  and  there  is  an  impassable 
gulf  between  them.  The  difference  is,  that  which  exists  between 
freedom  and  slavery — and  a  greater  cannot  be  imagined.  In  the 
one,  the  end  in  view  is  the  happiness  of  the  youth,  born  to  equal 
rights  with  that  governor,  on  whom  the  duty  devolves  of  training 
the  young  to  usefulness,  in  a  station  which  he  is  afterwards  to  as 
sume  among  freemen.  To  such  an  end,  and  with  such  a  subject, 
moral  and  intellectual  instruction  seem  the  natural  means  ;  and 
for  the  most  part,  they  are  found  to  suffice.  Moderate  force  is 
superadded,  only  to  make  the  others  effectual.  If  that  fail,  it  is 
better  to  leave  the  party  to  his  own  headstrong  passions,  and  the 
ultimate  correction  of  the  law,  than  to  allow  it  to  be  immoderately 
inflicted  by  a  private  person.  With  slavery  it  is  far  otherwise. 
The  end  is  the  profit  of  the  master,  his  security  and  the  public 
safety  ;  the  subject,  one  doomed  in  his  own  person,  and  his  pos 
terity,  to  live  without  knowledge,  and  without  the  capacity  to  make 
any  thing  his  own,  and  to  toil  that  another  may  reap  the  fruits. 
What  moral  considerations  shall  be  addressed  to  such  a  being,  to 
convince  him  what,  it  is  impossible  but  that  the  most  stupid  must 
feel  and  know  can  never  be  true  ;  that  he  is  thus  to  labor  upon  a 
principle  of  natural  duty,  or  for  the  sake  of  his  own  personal  hap 
piness,  such  services  can  only  be  expected  from  one  who  has  no 
will  of  his  own  ;  who  surrenders  his  will  in  implicit  obedience  to 
that  of  another.  Such  obedience  is  the  consequence  only  of  un 
controlled  authority  over  the  body.  There  is  nothing  else  which 
can  operate  to  produce  the  effect.  The  power  of  the  master 
must  be  absolute,  to  render  the  submission  of  the  slave  perfect.  I 
most  freely  confess  my  sense  of  the  harshness  of  this  proposition. 
I  feel  it  as  deeply  as  any  man  can.  And  as  a  principle  of  moral 
right,  every  person  in  his  retirement  must  repudiate  it.  But  in  the 
actual  condition  of  things,  it  must  be  so.  There  is  no  remedy. 
This  discipline  belongs  to  the  state  of  slavery.  They  cannot  be 
disunited,  without  abrogating  at  once  the  rights  of  the  master,  and 
absolving  the  slave  from  his  subjection.  It  constitutes  the  curse  of 
slavery  to  both  the  bond  and  the  free  portions  of  our  population. 
But  it  is  inherent  in  the  relation  of  master  and  slave.  That  there 
may  be  particular  instances  of  cruelty  and  deliberate  barbarity, 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  247 

where   in  conscience  the  law  might  properly  interfere,  is  most 
probable. 

The  difficulty  is  to  determine,  where  a  court  may  properly  be 
gin.  Merely  in  the  abstract  it  may  well  be  asked,  which  power  of 
the  master  accords  with  right.  The  answer  will  probably  sweep 
away  all  of  them.  But  we  cannot  look  at  the  matter  in  that  light. 
The  truth  is,  that  we  are  forbidden  to  enter  upon  a  train  of  general 
reasoning  on  the  subject.  We  cannot  allow  the  right  of  the  mas 
ter  to  be  brought  into  discussion  in  the  courts  of  justice.  The 
slave,  to  remain  a  slave,  must  be  made  sensible  that  there  is  no 
appeal  from  his  master ;  that  his  person  is,  in  no  instance, 
usurped  ;  but  is  conferred  by  the  laws  of  man,  at  least,  if  not 
by  the  la\v  of  God.  The  danger  would  be  great  indeed,  if  the 
tribunals  of  justice  should  be  called  on  to  graduate  the  punish 
ment  appropriate  to  every  temper,  and  every  dereliction  of  me 
nial  duty.  No  man  can  anticipate  the  many  and  aggraved  provo 
cations  of  the  master  which  the  slave  would  be  constantly  stimu 
lated,  by  his  own  passions,  or  the  instigation  of  others,  to  give  ;  or 
the  consequent  wrath  of  the  master,  prompting  him  to  bloody  ven 
geance,  upon  the  turbulent  traitor  ;  a  vengeance  generally  prac 
tised  with  impunity,  by  reason  of  its  privacy.  The  court,  therefore, 
disclaims  the  power  of  changing  the  relation  in  which  these  parts 
of  our  people  stand  to  each  other. 

We  are  happy  to  see,  that  there  is  daily  less  and  less  occasion 
for  the  interposition  of  the  courts.  The  protection  already  afforded 
by  several  statutes,  that  all  powerful  motive,  the  private  interest  of 
the  owner,  the  benevolence  towards  each  other,  seated  in  the 
hearts  of  those  who  have  been  born  and  bred  together,  the  frowns 
and  deep  execrations  of  the  community  upon  the  barbarian,  who 
is  guilty  of  excessive  and  brutal  cruelty  to  his  unprotected  slave, 
all  combined,  have  produced  a  mildness  of  treatment,  and  atten 
tion  to  the  comforts  of  the  unfortunate  class  of  slaves,  greatly  miti 
gating  the  rigors  of  servitude,  and  ameliorating  the  condition  of 
the  slaves. 

The  same  causes  are  operating,  and  will  continue  to  operate 
with  increased  action,  until  the  disparity  in  numbers  between  the 
whites  and  blacks  shall  have  rendered  the  latter  in  no  degree  dan 
gerous  to  the  former,  when  the  police  now  existing  may  be  further 
relaxed.  This  result,  greatly  to  be  desired,  may  be  much  more 
rationally  expected  from  the  events  above  alluded  to,  and  now  in 
process,  than  from  any  rash  expositions  of  abstract  truths,  by  a 
judiciary  tainted  with  a  false  and  fanatical  philanthropy,  seeking  to 


248  SLAVERY. 

redress  an  acknowledged  evil,  by  means  still  more  wicked  and 
appalling  than  even  that  evil.  I  repeat,  that  I  would  gladly  have 
avoided  this  ungrateful  question.  But  being  brought  to  it,  the 
•  court  is  compelled  to  declare,  that  while  slavery  exists  amongst  us 
in  its  present  state,  or  until  it  shall  seem  fit  to  the  legislature  to 
interpose  express  enactments  to  the  contrary,  it  will  be  the  impera 
tive  duty  of  the  judges  to  recognize  the  full  dominion  of  the  owner 
over  the  slave,  except  where  the  exercise  of  it  is  forbidden  by  stat 
ute.  And  this  we  do  upon  the  ground,  that  this  dominion  is  essen 
tial  to  the  value  of  slaves  as  property,  to  the  security  of  the  master, 
and-  the  public  tranquility,  greatly  dependent  upon  their  subordi 
nation  ;  and,  in  fine,  as  most  effectually  securing  the  general  pro 
tection  and  comfort  of  the  slaves  themselves.  Judgment  below 
reversed  ;  and  judgment  entered  for  the  defendant. 

7. 

SCIDMORE  v.  SMITH.     Aug.    T.  1816.     13  John's  Rep.  322. 
The  statute       Trespass  for  harboring  the  plaintiff's  man  servant.     It  was  ob- 
Conng0r  jected,  that  it  ought  to  have  been   debt  under  the  statute  for  the 

slaves  and     penalty 
servants   is    r  ~ 

cumula-  Per  Cur.     The   statute  penalty  for  harboring  slaves  and  ser 

vants,  is  cumulative,  and  does  not  destroy  the  common  law  remedy. 

8. 
BROWN  and  BOISSEAU.     April    T.    1810.     1   Munf.  Rep.  288. 

Justinca-  Trespass  for  breaking  the  plaintiffs  close,  and  beating  his 
t,oruntres-  siaves.  The  defendants  pleaded,  jointly,  not  guilty.  On  the  trial 
they  offered  testimony  tending  to  show  in  mitigation  of  damages, 
that  the  plaintiff  had  given  a  general  permission  to  Brown  to  visit 
his  negro  quarters,  and  chastise  any  of  his  slaves  who  might  be 
found  acting  improperly.  The  court  refused  to  hear  the  testimo 
ny,  although  the  beating  of  the  negroes  by  Boisseau,  was  in  the 
presence  of  Brown,  and  with  his  assent.  It  was  admitted,  that  no 
permission  had  been  given  to  Boisseau.  Verdict  for  plaintiff. 

Per  Cur.     Tucker,  J.     The  evidence  was,  in  my  opinion,  most 
properly  rejected.   Roane  and  Fleming,  Js.,  concurred. 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  249 

(B.)  FOR  MAIMING  OR  KILLING  HIM. 
1. 

CRAWFORD  v.  CHENEY.     Sept.    T.    1824.    15  Martin's  Louisi 
ana  Rep  142. 

Per  Cur.     Porter,  J.     This  is  an   action  brought  to  recover  for  kfmng 
the  price  of  a  negro  whom  the  plaintiff  charges  the  defendant  with  a  slave  pre- 
having  shot  and  killed.     The  evidence  on  which  the  jury  found  a  evidence 
verdict,  comes  up  on  the  record,  and  the  defendant  renews  here,  a  thTverdict. 
motion  which   he   unsuccessfully  made  in  the  court  below,   for  a 
new  trial,  on  the  ground  of  the  finding  being  contrary  to  law  and 
evidence.     The  testimon}',  it  has  been  argued,  is  weak,  and  it  is 
perhaps  so ;  but  the   act  charged  here  is  one  rarely  committed  in 
presence  of  witnesses ;  and  the  most  that  can  be  expected  in  cases 
of  this  kind,   is  the  presumptions   that  result  from   circumstances. 
A  most  respectable  jury,  who  knew  the  parties,  have  found  a  ver 
dict  in  favor  of  the  plaintiff,  and  we  are  unable  to  say  the  evidence 
authorizes  us  to  reverse  the  judgment  rendered  therein.     We  be 
lieve  justice  has  been  done,  and  when  the  proceedings  of  the  infe 
rior  court   terminate  there,  as  we  think  they  have  in  the  instance 
before  us,  a  stronger  case  than  this  must  be  presented,  to  induce 
us  to  send  the  cause  to  a  new  trial.     Judgment  affirmed. 

2. 

JOURDAX  v.  PATTON.      July  T.  1818.    5  Martin's  Louisiana 

Rep.  615. 

Per  Cur.     JUatheios,  J.     The   pliantiff  claims  damages  for  an  if  on  an 
injury  done  to  one  of  her  slaves,  by  one  of  the  defendant's.     She  j^^ave* 
obtained  judgment ;  and  the  defendant  appealed.     The  injury  done  the  plaintiff 
to  the  slave  was  of  such  a  nature  as  to  render  him  wholly  useless  :  his  full  va- 
his  only  eye  having  been  put  out.    The  parish  court  decreed  that  property  is 
the  plaintiff  should  recover  twelve  hundred  dollars,  the  supposed  transferred 

to  the  de 
value   of  the   slave,    and   a  further  sum  of  twenty-five  dollars  a  fendant,on 

month,  from  the  time  he  was  deprived  of  his  sight ;   and  that  the  th^judg-° 
defendant  should  pay  the  physician's  bill  and  two  hundred  dollars  ment' 
for  the  sustenance  of  the  slave  during  his  life,  and  that  he  should 
remain  for  ever  in  the  possession  of  the  plaintiff.     We  are  of  opi 
nion,  that  this  judgment  is  erroneous,  in  giving  damages  for  the  full 
value  of  the  slave,  and  compensation  for  the  loss  of  his  labor, 
from  the  time  he  became  blind,  during  an  undetermined  period. 
32 


250  SLAVERY. 

Further,  it  is  thought  to  be  erroneous,  in  decreeing  that  the  de 
fendant  should  pay  two  hundred  dollars  for  the  subsistance  of  the 
slave,  and  that  he  should  remain  forever  in  the  possession  of  the 
plaintiff.  The  most  that  could  have  been  equitably  claimed,  in  ad 
dition  to  the  full  value  of  the  slave,  was  legal  interest  thereon  ; 
which,  though  it  could  not  be  given  as  interest,  upon  an  uncertain 
and  unliquidated  sum,  might  have  been  taken  into  view,  in  estimat 
ing  and  fixing  the  damages.  In  the  present  case,  from  a  com 
parison  of  the  testimony,  as  to  the  value  of  the  slave,  we  are  of 
opinion  that  full  and  complete  indemnity  has  been  given  for  a  total 
loss.  When  the  defendant  shall  have  paid  the  sum  thus  decreed, 
we  are  of  opinion  that  the  slave  ought  to  be  placed  in  his  posses 
sion,  deeming  that  the  judgment  making  full  compensation  to  the 
owner  operates  a  change  of  property.  In  this  view  of  the  case, 
that  part  of  the  judgment  of  the  parish  court,,  which  orders  the  de 
fendant  to  pay  two  hundred  dollars,  is  evidently  erroneous.  The 
principle  of  humanity,  which  would  lead  us  to  suppose  that  the 
mistress,  whom  he  had  long  served,  would  treat  her  miserable 
blind  slave  with  more  kindness  than  the  defendant,  to  whom  the 
judgment  ought  to  transfer  him,  cannot  be  taken  into  considera 
tion  in  deciding  this  case.  Cruelty  and  humanity  ought  not  to 
be  presumed  against  any  person.  A  remedy  for  them  can  only  be 
applied,  when  they  are  legally  proven.  The  judgment  of  the 
parish  court  being  erroneous,  in  these  points,  it  is  ordered,  ad 
judged  and  decreed,  that  it  be  annulled,  avoided,  and  reversed ;  and 
this  court,  proceeding  to  give  such  judgment  as,  in  their  opinion, 
ought  to  have  been  given  in  the  court  below,  it  is  further  order 
ed,  adjudged,  and  decreed,  that  the  plaintiff  recover  from  the  de 
fendant  the  sum  of  twelve  hundred  dollars,  as  an  indemnification  for 
the  value  of  the  slave,  and  that  she  shall  further  recover  the  amount 
of  all  expenses  incurred  for  the  attendance  and  treatment  of  the 
slave,  with  costs  of  suit  in  the  inferior  court. 

S. 

STATE  v.  CHEATWOOD.    Fall  T.  1834.    2  Hill's  Rep.  459. 

the^fime         Indictment  for  the  murder  of  a  slave  under  the  act  of  1821. 
in  the  The  defendant  was  convicted,  and  moved  in  arrest  of  judgment, 

words  of 

the  statute,  on  the  ground  that  the  indictment  did  not  charge  the  crime  in  the 
words  of  the  statute.  The  words  in  the  statute  were  "  wilfully,  de 
liberately,  and  maliciously  did  murder ;"  the  words  in  the  indict- 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  251 

ment  were,  "  wilfully,  deliberately  and  maliciously  did  kill  and  mur 
der." 

Harper,  J.  decided  the  variance  was  immaterial. 

4. 
STATE  v.  CHEATWOOD.   Fall  T.  1834.    2  Hill's  Rep.  459. 

Harper,  J.  held,  that  the  object  of  the  act  of  1821,  relative  to  interpreta- 
the  murder  of  slaves,  was  to  make  the  murder  of  a  slave   of  the  Jj°tn  ffj^S 
same  grade  and  character  as  the  murder  of  a  white  man  or  free-  relating  to 
man  at  common  law,  and  is  to  be  made  out  by  the  same  kind  of 
proof. 

5. 

PERRIE  v.  WILLIAMS.   May  T.  1827.     17  Martin's  Louisiana 

Rep.  695. 

Per  Cur.     Mathews,  J.     This  is  an  action  of  trespass,  in  which  In  an  action 
the  plaintiff  claims  damages  for  the  loss  of  a  slave  which  she  alleges  ges  for 
to  have  been  killed  by  the  defendant's.     They  severed  in  their 


answers  to  the  petition,  and  separate  verdicts  and  judgments  were  slave> 
rendered  against  them.     Williams  alone  appealed.     Two  bills  of  permitted 
exceptions  are  found  in  the  record,  which  must  be  disposed  of.  .°ut  "  e 
The  first  is  to  the  opinion  of  the  judge,  a  quo,  by  which  he  author-  ^"|^t  °?n 
ized  the  plaintiff   to  strike  out  a  count  in  her  petition,  which  rela-  the  defend- 
ted  to  the  conduct  of  the  appellant  as  an  overseer.     The  allega-  manage- 
tions  in  that  part  of  the  petition  had  no  relation  to  the  trespass  in 
which  the  slave  was  destroyed  ;  but  only  charged  the  overseer  with 
gross  negligence  and  mismanagement  of  the  plantation  and  slaves 
of  the   appellee.     It,  in  truth,  was  a  declaration  of  facts,  making 
an  entire  and  distinct  cause  of  action.     This  part  of  the  suit  was 
dismissed,  by  leave  of  the  court,  after  the  cause  was  submitted  to 
the  jury  ;  but  not  until  Williams  had  been  allowed  to  amend  his 
pleas,  by  discontinuing  a  claim   in  recommendation  for  wages  as 
overseer.     Under  such  circumstances,  and  in   pursuance  of  the 
code  of  practice,  we  are  of  opinion,  that  the  court  below  did  not 
err  in  permitting  the  plaintiff  to  discontinue  that  part  of  her  suit 
which  related  to  the  neglect  and  bad  conduct  of  the  defendant  as 
overseer, 


252  SLAVERY. 

6. 

THE  STATE  OF  MISSISSIPPI  v.  JONES.     June  T.  1820.  Walk 

er's  Rep.  83. 

In  the  state  Per  Cur.  Clarke,  J.  The  question  in  this  case,  arising  in  ar- 
ippimur-8"  rest  °f  judgment,  transferred  on  doubts  from  Adams  superior 
dermaybe  COurt,  is,  whether,  in  this  state,  murder  can  be  committed  on  a 

committed 

by  the  kill-  slave.  Because  individuals  may  have  been  deprived  of  many  of 
slave,0  as  tneir  rights  by  society,  it  does  not  follow,  that  they  have  been  de- 


Prive(l  °f  a^  tneir  rights.  In  some  respects,  slaves  may  be  consi- 
of  a  free-  dered  as  chattels,  but  in  others,  they  are  regarded  as  men.  The 
law  views  them  as  capable  of  committing  crimes.  This  can  only 
be  upon  the  principle,  that  they  are  men  and  rational  beings.  The 
Roman  law  has  been  much  relied  on  by  the  counsel  of  the  defend 
ant.  That  law  was  confined  to  the  Roman  Empire,  giving  the 
power  of  life  and  death  over  captives  in  war,  as  slaves,  but  it  no  more 
extended  here,  than  the  similar  power  given  to  parents  over  the  lives 
of  their  children.  Much  stress  has  also  been  laid  by  the  defendant's 
counsel,  on  the  case  ci*ed  from  Taylor's  Reports,  decided  in  North 
Carolina;  yet,  in  that  case,  two  judges  against  one  were  of  opinion, 
that  killing  a  slave  was  murder.  Judge  Hall,  who  delivered  the 
dissenting  opinion  in  the  above  case,  based  his  conclusions,  as  we 
conceive,  upon  erroneous  principles,  by  considering  the  laws  of 
Rome  applicable  here.  His  inference,  also,  that  a  person  cannot 
be  condemned  capitally,  because  he  may  be  liable  in  a  civil  action, 
is  not  sustained  by  reason  or  authority,  but  appears  to  us  to  be  in 
direct  opposition  to  both.  At  a  very  early  period  in  Virginia,  the 
power  of  life  over  slaves  was  given  by  statute  ;  but  Tucker  ob 
serves,  that  as  soon  as  these  statutes  were  repealed,  it  was  at  once 
considered  by  their  courts,  that  the  killing  of  a  slave  might  be  mur 
der.  Commonwealth  v.  Dolly  Chapman  ;  indictment  for  maliciously 
stabbing  a  slave  under  a  statute.  It  has  been  determined  in  Virginia 
that  slaves  are  persons.  In  the  constitution  of  the  United  States, 
slaves  are  expressly  designated  as  "  persons."  In  this  state  the 
legislature  have  considered  slaves  as  reasonable  and  accountable 
beings,  and  it  would  be  a  stigma  upon  the  character  of  the  state, 
and  a  reproach  to  the  administration  of  justice,  if  the  life  of  a  slave 
could  be  taken  with  impunity,  or  if  he  could  be  murdered  in  cold 
blood,  without  subjecting  the  offender  to  the  highest  penalty  known 
to  the  criminal  jurisprudence  of  the  country.  Has  the  slave  no 
rights,  because  he  is  deprived  of  his  freedom  ?  He  is  still  a  hu* 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &,c.  253 

man  being,  and  possesses  all  those  rights  of  which  he  is  not  de 
prived  by  the  positive  provisions  of  the  law  ;  but  in  vain  shall  we 
look  for  any  law  passed  by  the  enlightened  and  philanthropic  legis 
lature  of  this  state,  giving  even  to  the  master,  much  less  to  a  stran 
ger,  power  over  the  life  of  a  slave.  Such  a  statute  would 
be  worthy  the  age  of  Draco  or  Caligula,  and  would  be  con 
demned  by  the  unanimous  voice  of  the  people  of  this  state,  where 
even  cruelty  to  slaves,  much  less  the  taking  away  of  life,  meets  with 
universal  reprobation.  By  the  provisions  of  our  law,  a  slave  may 
commit  murder,  and  be  punished  with  death,  why  then  is  it  not 
murder  to  kill  a  slave]  Can  a  mere  chattel  commit  murder,  and 
be  subject  to  punishment'? 

Villeins,  in  England,  were  more  degraded  than  our  slaves.  It  is 
true,  that  formerly  the  murder  of  a  villein^was  not  punished  with 
death,  but  neither  was  the  murder  of  a  freeman  then  so  punished. 
The  only  difference  between  the  freeman  and  the  slave  was  in  the 
magnitude  of  the  fine.  In  England,  killing  a  villein  was  as  much 
murder  as  killing  a  lord.  Yet  villeins  were  then  the  most  abject 
slaves,  and  could  be  bought  and  sold  as  chattels  ;  but  because 
slaves  can  be  bought  and  sold,  it  does  not  follow  that  they  can  be 
deprived  of  life.  The  right  of  the  master  exists  not  by  force  of 
the  law  of  nature  or  nations,  but  by  virtue  only  of  the  positive  law 
of  the  state  ;  and  although  that  gives  to  the  master  the  right  to 
command  the  services  of  the  slave,  requiring  the  master  to  feed 
and  clothe  the  slave  from  infancy  till  death,  yet  it  gives  the  master 
no  right  to  take  the  life  of  the  slave  ;  and  if  the  offence  be  not 
murder,  it  is  not  a  crime,  and  subjects  the  offender  to  no  punish 
ment.  The  taking  away  the  life  of  a  reasonable  creature,  under 
the  king's  peace,  with  malice  aforethought,  express  or  implied,  is 
murder  at  common  law.  Is  not  a  slave  a  reasonable  creature  ? — 
is  he  not  a  human  being  ]  And  the  meaning  of  this  phrase,  rea 
sonable  creature,  is  a  human  being.  For  the  killing  a  lunatic,  an 
idiot,  or  even  a  child  unborn,  is  murder,  as  much  as  the  killing  a 
philosopher ;  and  has  not  the  slave  as  much  reason  as  a  lunatic,  an 
idiot,  or  an  unborn  child  ?  All  are  in  the  king's  peace,  except 
alien  enemies,  flagrante  belli.  A  distinction  once  existed  in 
England,  between  the  killing  a  Dane  and  a  Saxon  ;  but  even  in 
Coke's  time  the  killing  any  rational  being  was  murder.  Jews  were 
then  regarded  in  a  light  more  odious  than  the  most  abject  slave  ; 
yet  to  kill  them  was  murder.  So,  to  kill  one  attainted,  or  an  out 
lawed  felon,  or  even  an  alien  enemy,  except  in  battle,  might  be 


254  SLAVERY. 

murder.  The  term,  "  king's  peace,"  means  the  place  where  the 
crime  is  committed,  the  actual  venue,  and  not  a  particular  class  of 
human  beings. 

At  one  period  of  the  Roman  history,  a  history  written  in  the 
blood  of  vanquished  nations,  slaves  were  regarded  as  captives, 
whose  lives  had  been  spared  in  battle,  and  the  savage  conqueror 
might  take  away  the  life  of  the  captive,  and  therefore  he  might 
take  away  the  life  of  the  slave.  But  the  civil  law  of  Rome  extir 
pated  this  barbarous  privilege,  and  rendered  the  killing  a  slave  a 
capital  offence.  When  the  northern  barbarians  overran  South 
ern  Europe,  they  had  no  laws  but  those  of  conquerors  and  con 
quered,  victors  and  captives  ;  yet,  even  by  this  savage  people,  no 
distinction  was  recognized  between  the  killing,  in  cold  blood,  a 
slave  or  a  freeman.  And  shall  this  court,  in  the  nineteenth  cen 
tury,  establish  a  principle  too  sanguinary  for  the  code  even  of  the 
Goths  and  Vandals,  and  extend  to  the  whole  community,  the  right 
to  murder  slaves  with  impunity  ? 

The  motion  to  arrest  the  judgment  must  be  overruled. 

7. 

COMMONWEALTH  v.  CARVER.     June  T.  1827.     5  Rand's  Rep. 

660. 

A  negro  The  prisoner  was  indicted  for  feloniously,  maliciously,  and  un- 
8lrotected  lawfu%  shooting,  with  intent  to  maim,  disfigure,  disable,  and  kill, 
by  the  act  a  negro  man  slave  of  the  name  of  Armistead,  the  property  of  An- 
1819,  a-6  '  drew  Houten,  under  the  act  of  9th  of  February,  1819.  The 
fawDfui  Un  JudSe  Doubted  whether  a  negro  slave  is  the  subject  or  person  on 
shooting,  which  the  offence  created,  and  the  penalties  prescribed  by  the  act 
&c.  by9  a  can  be  committed  or  incurred,  adjourned  the  case  to  the  general 

free  per- 

Rftn   *  COUrt. 

The  Court.  Brockenbrough,  J.,  after  referring  to  Dolly  Chappie's 
case,  1  Virg.  Cas.  184.,  declared,  that  a  slave  was  a  person  on 
whom  the  offence  of  stabbing  and  shooting  might  be  committed  ; 
and  that  the  act  was  intended  to  protect  slaves  as  well  as  free  per 
sons  from  such  outrages. 

It  may  be  further  remarked,  that  there  appears  no  reason,  arising 
from  the  relative  situation  of  master  and  slave,  why  a  free  person 
should  not  be  punished  as  a  felon  for  maiming  a  slave.  Whatever 
power  our  laws  may  give  to  a  master  over  his  slave,  it  is  as  impor 
tant  for  the  interest  of  the  former,  as  for  the  safety  of  the  latter,  that 
a  stranger  should  not  be  permitted  to  exercise  an  unrestrained  and 


son. 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  255 

lawless  authority  over  him.     The  opinion  of  the  court  is,  that  judg 
ment  ought  not  to  be  arrested. 

8 

FIELDS  v.  THE  STATE  OF  TENNESSEE.  Jan.  T.  1829.     1  Yer- 
ger's  Rep.  156. 

Whyte,  J.     The  plaintiff  in  error  was-  indicted   in   the    circuit  The  feto- 

-  nious  slay- 

COUrt  of  the   county  of  Maury,   for  the    murder  of  a   negro   man  jngofa 

slave,  named  Peter,  the  property  of  a   certain  David  Jeffries. —  JjJEat 
Upon    the   indictment    he  pleaded  not  guilty.     The  jury  found  malicfa'u1!b 
him  not   guilty  of  the  murder   as   charged  in   the   bill  of  indict-  ter. 
ment,   but  guilty  of  the  manslaughter,  in  feloniously  slaying  the 
negro  slave  Peter. 

Upon  the  verdict  it  was  moved,  for  the  plaintiff  in  error  by  his 
counsel,  that  no  judgment  should  be  rendered    against  him,    be 
cause    the  jury  found    him  guilty  of  manslaughter  only,   which 
crime,  where  the  person  slain  was  a  slave,  does  not  in  point  of  law 
exist.  The  court  overruled  the  motion  in  arrest  of  judgment,  and 
passed  sentence  upon  him,  that  he  be  burned  in  the  brawn  of  the 
left  hand,  be  imprisoned  thirty  days,  and  pay  the  costs  of  the  pro 
secution.     From   which  judgment  an  appeal,  in  the  nature   of  a 
writ  of  error,  was  taken  to  this  court.     It  was  contended  for  the 
plaintiff  in  error,  in  a  very  able  and   learned   argument,  that  the 
common  law  of  England  ought  not  to  guide  the  investigation,  and 
govern  the   decision  of  this   question  ;  for  that  slavery  never  ex 
isted  in  England,  and,  therefore,  the  principles  of  the  common  law 
could  not  have  in  view,  nor  in  any  part  be  founded  upon  a  state  of 
society  which  had  no  existence  in   that  country.     That,  although 
the  colonial    government  of  England,  or  Great  Britain,  extended 
to  these    states  before  the  revolution,  yet  the  law  of  nations,  on 
which   slavery  depended,  and  the   municipal  regulations  of  each 
government  on  the  subject,  formed  the  code  of  laws  by  which  all 
questions  regarding   slaves  should  be  governed  ;  and,  therefore, 
the  law  of  nations,  with  municipal  regulations,  or  legislative  acts 
of  the  colonial  government  of  North  Carolina  before  the  revolu 
tion,  and  the  acts   of  assembly  of  North  Carolina  and    Tennessee 
since  the  revolution,  should  govern  this  case.  That  by  the  law  of 
nations,  as  it  formerly  existed,  the  master  had  an  absolute  and  un 
limited  power  over  the  life  and  fortune  of  his  slave  ;  that  in  later 
times,  municipal  law  has  abridged  this  power  of  the  master,  and 


256  SLAVERY. 

produced  amelioration  in  the  state  of  slaves.  But  this  ameliora 
tion  or  abridgment  of  the  power  of  the  master,  is  only  co-exten 
sive  with  the  municipal  assumption,  leaving  with  him  that  portion 
not  expressly  taken  away.  From  this  view  it  follows,  that  the 
wilfully  or  maliciously  killing,  with  malice  aforethought,  a  negro 
or  mulatto  slave,  being  made  murder,  and  the  offender  punishable 
with  death,  without  benefit  of  clergy,  by  the  act  of  1799,  ch.  9., 
does  not  include  or  embrace  any  other  kind  of  homicide  but  the 
one  mentioned  ;  and  the  jury  in  the  present  case,  having  found 
the  plaintiff  in  error  guilty  of  manslaughter,  being  a  different  and 
inferior  grade  to  that  stated  in  the  act,  is  not  an  offence  within  it ; 
and  there  being  no  other  act  of  assembly,  making  a  felonious  and 
wilful  killing  of  a  slave  punishable,  the  judgment  of  the  circuit 
court  is  erroneous.  We  cannot  concur  with  the  view  the  learned 
counsel  has  taken  of  this  case,  and  assent  to  the  position,  that  the 
common  law,  or  its  principles,  are  not  to  have  an  influence  in 
the  decision  of  this  case.  It  is  true,  as  observed  in  the  argument, 
that  pure  and  proper  slavery  never  subsisted  in  England,  giving 
the  master  the  power  of  life  and  death  over  the  slave  ;  but  a  spe 
cies  of  slavery,  or  servitude,  existed  there  from  the  earliest  times  ; 
the  subjects  of  it  were  not  styled  slaves,  but  villeins ;  and  their 
state  and  circumstances  much  resemble  that  of  our  slaves  at  the 
present  day.  These  villeins  were  either  regardant,  that  is,  an 
nexed  to  the  manor  or  land,  or  villeins  in  gross,  or  at  large  ;  that 
is,  annexed  to  the  person  of  the  master,  or  lord,  as  he  is  called  in 
the  books.  Both  classes  were  transferable  by  deed  from  one  cor 
ner  to  another;  neither  could  leave  their  master  without  his  per 
mission  ;  and  if  they  ran  away,  or  were  purpoined  from  him, 
might  be  claimed  and  recovered  by  action  like  beasts  and  other 
chattels. 

The  children  of  villeins  were  also  in  the  same  state  of  bondage 
with  their  parents,  but  followed  the  condition  of  their  father — free, 
if  he  was  free  ;  and  villein,  if  he  was  villein  ;  differing  in  that  re 
spect  with  the  condition  of  our  slaves,  when  the  maxim  of  the  civil 
law,  that  partus  sequitur  ventrem  prevails.  Neither  could  the  villein 
acquire  property  for  his  own  benefit,  the  maxim  applying  quicquid 
acquiretur  servo,  acquiretur  domino  ;  nor  could  he  support  an  action 
against  his  master  fo,r  beating  him,  which  privilege  the  master 
could  always  exert  with  impunity,  as  no  civil  remedy  lay  for  him 
against  his  lord.  Such  was  the  civil  relation  existing  between  the 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  257 

master  and  villein  at  the  common  law.  See  2  Black.  Com.  93,  94. ; 
Litt.  S.  129.  194.  ;  Co.  Litt.  117.  a.  But  whilst  the  common  law 
noticed  and  sanctioned  these  harsh  characteristics  of  the  villein's 
condition,  it  guarded  his  person  as  an  object  of  the  criminal  law; 
and  protected  him  against  the  atrocious  injuries  of  his  lord  ;  for  he 
might  not  kill  or  maim  him  ;  and  for  these  he  shall  be  indicted  at 
the  suit  of  the  king,  2  Black.  Com.  94. ;  1  Inst  11G,  b. ;  Lit 
sec.  194. 

This  short  review  of  the  condition  of  villein  at  the  common  law 
exhibits  a  strong  resemblance  to  the  condition  of  our  slaves  ;  the 
principal  feature  of  both  are  the  same,  and  differing  only  in  some 
minutia,  which  do  not  require  to  be  noticed.  Why  then  do  not  the 
principles  of  the  common  law  apply,  as  far  as  the  state  or  condition  is 
similar,  the  one  to  the  other?  Our  ancestors  brought,  upon  their 
emigration,  the  common  law  with  them  as  their  rule  of  action,  and 
still  retain  it  where  applicable.  So  it  was  declared  upon  the  first 
settlement  of  North  Carolina,  in  the  act  of  1715,  ch.  31.,  sec.  6. 
So,  also,  after  the  revolution  in  1778,  it  is  again  declared,  "that  all 
such  parts  of  the  common  law  as  were  heretofore  in  force  and  use 
within  this  territory,  as  are  not  destructive  of,  repugnant  to,  or  in 
consistent  with,  the  freedom  or  independence  of  this  state,  and  the 
form  of  government  therein  established,  and  which  have  not  been 
otherwise  provided  for,  in  the  whole  or  in  part  not  abrogated,  re 
pealed,  or  expired,  are  hereby  declared  to  be  in  full  force  in  the 
state."  Act  of  April,  1778,  ch.  5.  sec.  2. 

By  the  common  law,  murder,  according  to  Lord  Coke,  3  Inst 
47.,  is  "  where  a  person  of  sound  mind  and  discretion  unlawfully 
killeth  any  reasonable  creature,  in  being,  under  the  king's  peace, 
with  malice  aforethought,  either  express  or  implied;"  manslaughter, 
by  Blackstone,  4  Com.  191.,  is  defined  to  be  "the  unlawful 
killing  of  another,  without  malice,  either  express  or  implied."  Both 
these  definitions  include  the  villein,  and  the  negro  or  mulatto  slave. 
Our  act  of  assembly  of  1799,  ch.  9.  sec.  1.,  enacts,  "that  if  any 
person  shall  wilfully  and  maliciously,  with  malice  aforethought, 
kill  any  negro  or  mulatto  slave  whatsoever,  on  due  and  legal  con 
viction  thereof,  in  any  superior  court  of  the  district  wherein  such 
offence  shall  have  been  committed,  be  deemed  guilty  of  murder,  as 
if  such  person,  so  killed,  had  been  a  freeman,  and  shall  suffer 
death  without  benefit  of  clergy ;  any  law,  usage  or  custom,  to  the 
contrary  notwithstanding."  This  statute  makes  the  same  act  mur- 
er,  and  punishable  with  death,  which  is  so  At  the  common  law. 
33 


258  SLAVERY. 

If  it  is  asked  then,  why  was  this  statute  made  if  the  same  act  was 
murder  and  punishable  with  death  at  the  common  law  1  it  was  made 
in  consequence  of  the  prior  act  of  1774,  having  enacted,  that  the  kill 
ing  a  slave  under  such  circumstances  that  would  have  constituted 
murder  by  a  freeman  doing  so,  should  be  punished  only  with 
twelve  months'  imprisonment  for  the  first  offence.  This  act  having 
so  far  superceded  the  common  law  on  the  same  matter,  the  legis 
lature  willing  it,  in  1799,  that  this  act  of  1774,  should  be  repealed, 
and  the  common  law  be  restored  ;  instead  of  a  repeal  in  terms, 
made  an  express  provision  on  the  same  subject  matter,  operating 
as  a  repeal,  and  enacting  that  the  killing,  which  by  the  act  of  1774 
was  punishable  only  by  twelve  months'  imprisonment,  should  be 
punishable  with  death.  It  is  now  said  that  by  these  acts  no  such 
crime  exists  in  our  law  as  manslaughter,  or  the  wilfully  end  felo 
niously  killing  a  slave ;  for  that  the  municipal  regulation  of  the 
courts,  or,  in  other  words,  the  acts  of  assembly,  do  not  in  terms, 
or  otherwise,  declare  its  existence.  It  is  answered,  that  the  legis 
lature  in  the  acts  of  1774  and  1799,  legislated  upon  a  set  of  facts 
constituting  murder;  and  the  act  of  1784  sa}*s,  when  the  subject 
of  them  is  a  slave,  the  punishment  is  twelve  months'  imprisonment. 
Now,  if  after  the  passage  of  the  act  of  1 784,  it  would  be  a  correct  con 
struction  to  say,  that  as  murder,  which  is  a  more  heinous  offence 
than  manslaughter,  is  made  only  punishable  by  imprisonment  for 
twelve  months,  therefore,  the  less  offence  of  manslaughter  does  not 
exist ;  or  if  it  does  exist,  is  not  punishable  at  all  Would  it  not  be  an 
equally  correct  construction  to  say,  that  the  repeal  of  this  act  of 
1774,  by  the  act  of  1799,  was  a  repeal  of  its  imputed  consequnces 
and  construction,  as  well  as  of  its  express  enactments.  But  the 
case  is,  that  neither  the  act  of  1774,  or  the  act  of  1799,  speak  of 
manslaughter,  or  the  state  of  facts  which  constitute  the  offence  of 
manslaughter  in  law.  On  the  other  hand,  it  may  be  safely  said, 
that  if  there  is  no  act  of-assernbly  of  North  Carolina,  or  of  the  ter 
ritorial  government,  or  of  our  own  government,  the  offence  of 
manslaughter,  when  a  negro  or  mulatto  slave  is  the  subject  of  it, 
from  our  criminal  code,  exists  by  the  common  law  :  because  it  is 
the  unlawful  killing  of  a  human  being  ;  and  this  definition  of  the 
offence  is  as  well  applicable  to  the  negro  or  mulatto  slave,  as  the 
villein. 

We  have  already  seen,  that  by  the  common  law,  the  villein  was 
protected,  as  to  his  life  and  limbs,  against  the  atrocity  of  the  lord  or 
owner.  This  case  is  that  of  a  stranger  committing  the  act,  and 
not  the  lord  or  owner.  This  matters  not,  for  the  law  is  the  same 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  «fcc.  259 

in  both  cases  :  if  there  were  a  difference  by  analogy  to  their  civil 
civil  rights,  it  would  operate  against  the  stranger.  Thus,  an  action 
of  assault  and  battery  cannot  be  supported  by  the  villein  against  his 
lord,  for,  being  his  servant,  he  had  a  right  to  beat  him  at  pleasure, 
not  extending  to  life  or  member,  but  to  the  like  action  by  the  villein. 
Versus  nan  dominwn,  non  valebit  el  exceptio,  quia  est  servus  alienus, 
ex  quo  nihil  ad  ipsum,  utrum  liber  sit  non  servus.  If  being  his  servus, 
was  a  good  answer  by  the  lord,  in  an  action  of  assault  and  battery, 
but  riot  available  for  him  on  indictment  for  homicide  or  mayhem, 
still  less  must  be  that  of  alienus  servvs  in  the  mouth  of  a  stranger, 
upon  the  like  indictment. 

The  judgment  rendered  in  the  present  case  is  upon  a  verdict  of 
th?  jury  given  on  an  indictment  for  murder,  finding  that  the  plain 
tiff  in  error  is  not  guilty  of  the  murder  charged  in  the  bill  of  in 
dictment  ;  but  he  is  guilty  of  manslaughter  in  feloniously  slaying 
the  negro  slave,  Peter.  It  is  the  same  judgment  that  would  have 
been  rendered  against  the  plaintiff  in  error,  if  the  subject  of  the 
homicide  had  been  a  freeman,  instead  of  a  negro  slave.  There  is 
no  law  authorizing  any  distinction  between  the  two  cases.  There 
was  no  distinction  at  common  law  between  the  judgments  in  homi 
cide,  for  the  killing  a  freeman,  and  killing  a  villein.  The  words  of 
lord  Coke  are  express  to  this  point ;  he  says,  "  he  that  killed  his 
villein,  should  have  the  same  judgment  as  if  he  killed  a  freeman." 
1  Inst.  116.  b.  It  may  be  also  observed,  that  the  finding  of  the 
jury  in  this  case,  is  the  usual  finding  upon  a  bill  of  indictment  for 
murder,  where  the  facts  of  the  case  admit  of  it,  and  is  a  proceed- 
Jng  at  common  law,  and  sanctioned  by  it.  See  1  Black.  Com. 
48.,  where  he  says,  "  the  common  law,  properly  so  called,  is  that 
law  by  which  proceedings  and  determinations  in  the  king's  ordinary 
courts  of  justice  are  guided  and  directed." 

Peck,  J.  Defendant  was  indicted  in  the  circuit  court  of  Maury 
county,  for  the  murder  of  a  negro  slave.  He  pleaded  not  guilty  ; 
and  at  the  trial  was  found  guilty  of  wilful  and  felonious  slaying  of 
the  slave  aforesaid. 

The  prisoner  had  his  plea  of  clergy  allowed,  and  judgment  for 
the  offence  of  manslaughter  was  pronounced  against  him  ;  from 
which  judgment  he  has  prosecuted  this  writ  of  error.  It  is  now 
insisted,  that  the  wilful  and  felonious  slaying  of  a  slave  is  not  pun 
ishable  ;  and  for  this  is  cited,  2  Hayw.  Rep.;  1  Taylor  Rep.;  Act 
of  179:  for  the  state,  1  Hawks'  Rep.  Murder,  says  sir  Edward 
Coke,  3  Inst.  47.,  is  when  a  man  of  sound  memory,  and  of  the 


260  SLAVERY, 

age  of  discretion,  unlawfully  killeth,  within  any  county  of  the 
realm,  any  reasonable  creature,  in  rerum  natura,  under  the  king's 
peace,  with  malice  aforethought,  either  express  or  implied.  Black- 
-  stone,  in  his  Commentaries,  vol.  4.  p.  194,  remarks  :  "at  the  crime 
of  wilful  and  deliberate  murder  human  nature  starts  with  horror ;" 
and  which,  says  he,  "  is,  I  believe,  punished  throughout  the  world 
with  death."  The  Mosaic  law  and  the  precepts  to  Noah,  are  all 
so  many  denunciations  against  the  crime.  From  remotest  antiquity 
down  to  the  present  time,  mankind,  in  deliberating  upon  it,  have 
formed  the  same  opinion.  But  it  will  be  answered,  none  will  dis 
agree  about  the  crime  of  murder.  The  question  made  is,  whether 
or  not  the  crime  here  found — that  of  slaying  a  slave — is  a  crime 
punished  by  the  laws  of  this  State  ?  Our  act  of  the  assembly  of 
1799,  ch.  9.,  provides,  "  that  if  any  person  or  persons  shall,  wil 
fully  or  maliciously,  with  malice  aforethought,  kill  any  negro  or 
mulatto  slave  whatever,  on  due  and  legal  conviction,  he  shall  be 
deemed  guilty  of  murder,  as  if  such  person  so  killed  had  been  a 
freeman  ;  and  shall  suffer  death  without  benefit  of  clergy."  This 
act,  it  is  said,  creates  the  offence,  and  fixes  the  punishment  for  the 
murder  of  a  slave  ;  and  it  is  not  thence  to  be  inferred,  that  any 
other  killing,  not  mentioned  in  the  act,  was  designed  to  be  punished, 
or  even  considered  as  a  crime.  This  argument  is  founded  on  what 
is  said  to  be  the  law  of  nations ;  that  captives  taken  in  war  are 
subject  to  be  made  slaves ;  and  the  captor  has  a  right  to  dispose  of 
the  life  of  his  captive,  and  for  this  Vattel  is  cited.  The  position 
above  assumed,  I  conceive,  is  too  broad.  When  a  captive  has  laid 
down  his  arms  and  submitted,  there  is  then  no  necessity  for  dispo 
sing  of  his  life ;  and  nothing  but  necessity  or  unavoidable  accident, 
will  excuse  taking  away  life.  If  no  necessity  exists  for  destroying 
a  captive  human  being,  how  can  it  be  pretended  the  act  can  be  ex 
cused.  Vattel,  421. 

Christian  nations  do  not  consider  themselves  at  liberty  to  sport 
away  the  lives  of  captives.  At  this  day  the  act  would  be  repro 
bated  and  denounced  as  fit  only  for  the  savage  state.  Indeed, 
Christian  example  has  greatly  softened,  in  this  respect,  the  fero 
cious  savage  in  his  wars.  It  has  been  argued  by  a  jurist,  that  the 
slave  of  this  country,  when  taken  in  his  own  country,  was  subject 
to  this  law  ;  that  the  dealer  in  the  slave  trade  purchased  the  cap 
tive  there  with  this  burden  attached  to  him,  and  hence  it  is,  that 
the  law  affords  him  no  protection  against  the  attempt  of  the  master 
upon  his  life.  That  the  law  of  a  pagan  or  savage  nation,  should 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  <fec.  261 

have  been  acquired  with  the  commodity  purchased  and  ferried 
over  the  wave  with  it,  is  a  doctrine  too  monstrous  for  my  mind  ; 
for  had  the  slave  on  his  passage  touched  in  Britain,  the  common 
law  would  have  protected  his  life  against  the  assault  of  his  master. 
That  common  law  was  in  force  in  the  colonies.  The  attempt  to 
impart  and  commit  a  principle  so  opposed  to  those  founded  in 
common  law  and  suited  to  Christian  communities,  would  he  as  fu 
tile  as  the  attempt  to  unite  oil  with  water.  How  can  it  be  urged, 
that  of  necessity  the  horror  of  slavery  must  not  abate  when  intro 
duced  here,  from  the  degraded  condition  it  was  found  in  where  it 
had  its  origin.  If  it  is  true,  as  argued,  that  we  bring  the  law  of 
the  country  with  us  ;  then  a  slave  brought  from  those  islands, 
where  it  is  said  the  captor  sometimes  turns  cannibal,  kills  and 
makes  a  repast  of  his  captive — for  the  same  reason,  having  the 
law  and  example  of  that  country  before  us,  it  could  be  as  safely 
followed  here.  And,  ludicrous  as  this  may  seem,  it  falls  exactly 
within  the  train  of  that  argument,  which  can  only  be  supported  by 
supposing  the  slave  on  a  footing  with  the  live  stock  on  a  farm. 

I  have  been  taught  that  Christianity  is  a  part  of  the  law  of  the 
land. 

The  four  gospels  upon  the  clerk's  table  admonish  me  it  is  so  every 
time  they  are  used  in  administering  oaths.  If  the  mild  precepts  of 
Christianity  have  had  the  effect  to  ameliorate  the  condition  of  this 
order  of  people,  it  is  expected  that  we  must  recede  from  the  im 
provement  obtained,  and  retire  more  into  the  dark,  and  become  in 
government,  partly  Christian  and  partly  pagan,  because  we  own 
pagans  or  savages  for  our  property  !  If  the  argument  on  the  other 
side  is  correct,  this  consequence  would  follow  :  the  whole  train  of 
thinking  is  erroneous,  and  it  is  not  difficult  to  trace  the  origin  of  the 
error.  Those  in  early  times,  concerned  in  the  traffic  of  slaves, 
were  unfeeling  and  savage.  The  page  of  history  proves  that 
thousands  fell  victims  to  masters,  some  before,  and  some  after 
landing.  Man  is  imitative.  The  cruelty  first  practised  was  followed 
up,  and  a  bad  custom  against  all  law  was  winked  at.  But  in  later 
times,  when  murder  did  cry  out,  justice  demanded  her  recompense 
for  crime  ;  and  some  were  indicted  ;  acts  of  assembly  had  been 
passed  ;  and  the  offence  having  been  so  common,  it  was  pretty 
natural  to  overlook  the  principle  of  the  common  law,  and  follow 
such  rules  as  were  found  in  the  statute  ;  but  common  law,  because 
of  this  oversight,  had  not  ceased.  It  was  regained,  and  greatly  to 
the  honor  of  the  bench  of  N.  Carolina. 


262  SLAVERY. 

This  statute  of  ours  has  not  repealed  the  law  as  it  stood  before 
the  passage  of  this  act.  It  is  much  more  sensible  to  sa^,  it  is  affirm 
ative  of  the  common  law;  an  attempt  of  the  legislature  to  again 
bring  into  action  what  courts  had,  unfortunately,  but  too  long  per 
mitted  to  slumber. 

What  is  conclusive  with  me,  that  this  is  all  that  was  intended,  is, 
the  punishment  inflicted  by  the  act.  For  wilful  and  malicious  mur 
der,  the  offender  is  to  suffer  death  without  the  benefit  of  clergy — 
the  former  punishment.  Say,  that  for  a  time  the  law,  as  it  stood 
before,  had  been  misconstrued  or  overlooked,  if  the  court  had  re 
vived  and  restored  it  to  its  pristine  vigor,  would  not,  in  its  restora 
tion,  the  crime  of  manslaughter  have  been  restored  also  ?  Certainly 
it  would.  If,  then,  the  act  is  silent  as  to  manslaughter,  and  there 
be  no  repeal  of  former  laws,  what  pretence  is  there  to  say,  that 
manslaughter  is  done  away  ?  I  admit  this  will  depend  upon  the 
question,  whether  the  killing  a  slave  with  malice,  was  an  offence  at 
common  law.  Hut  does  not  the  common  law  definition  cover  the 
case  ?  Is  it  the  wilful  and  malicious  killing  of  a.  reasonable  creature  ? 
if  he  be  such,  then  the  reasoning  is  unsound  and  inconclusive, 
which  offers  as  an  excuse,  that  such  reasonable  creature  is  a  slave. 
It  is  well  said  by  one  of  the  judges  of  North  Carolina,  that  the  mas 
ter  has  a  right  to  exact  the  labor  of  his  slave  ;  that  far,  the  rights 
of  the  slave  are  suspended  ;  but  this  gives  the  master  no  right  over 
the  life  of  the  slave.  I  add  to  this  saying  of  the  judge,  that  law 
which  says  thou  shalt  not  kill,  protects  the  slave  ;  and  he  is  within 
its  very  letter.  Law,  reason,  Christianity  arid  common  humanity, 
all  point  out  one  way. 

Catron,  J.,  concurred.     Judgment  affirmed. 

9. 

BOOTH  et  al.   v.  SCHOONER  L'ESPERANZA.     March   T.    1798. 
Bee's  Rep.  92. 

Judge  Bee  held,  that  the  owner  of  a  slave  could  maintain  a  suit 
for  his  wages  as  a  mariner  on  board  a  coasting  vessel.  That  it  had 
been  so  decided  on  solemn  argument,  in  Stone  v.  Godet,  in  the 
district  court  of  South  Carolina. 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  263 

,?: 

(C.)  FOR  PROPERTY  GIVEN  TO,  OR  CONTRACTS  MADE  BY  THE 

SLAVE. 

1. 

LIVAUDAIS'  HEIRS   v.  Fox  et  al.     May  T.  .1820.     8  Martin's 

Rep.  161. 

Per  Cur.     Mathcws,  J.     This  is  a  suit  brought  by  the  appel-  A  master 

ITl3.y  SUG 

lees,  plaintiffs  in  the  court  below,  to  recover  the  amount  of  a  note,  for  what  is 
given    by  the   defendants  to  Frosina,  a  slave  of  the  plaintiffs,  by  slavea 
which  they  promised  to  pay  to  her  four    hundred   dollars.     Pay 
ment  is  resisted   on  the  ground  of  the  promise  having  been  made 
in  error,  and,  consequently,  having  created  no  obligation,  it  being 
a  contract  without  cause  or  consideration.     The  execution  of  the 
note  raises  a  presumption  of  a  just  consideration,  which  must  be 
defeated  by  proof  to  the  contrary,   on   the  part  of  the  defendants. 
This  they  have  attempted  by  the  production  of  a  testament  made 
by  one  Durand,  in  which  he  instituted  Pedro,  his  bastard  child  by 
Frosina,  the  slave  abovementioned,  his  heir,  and   appointed  Fon, 
one  of  the   appellants,   his  testamentary   executor;  and  by  the  in 
troduction   of  testamental  proof,  showing  that   the  child  died  in 
1812,  &c.    Admitting  that  all  this  evidence  was  properly  received 
in  the  present  suit  against  Fon,  and  another  person,  on   their  joint 
note,  which  is  by  no  means  clear,  we  are  of  opinion,  that  it  is  not 
sufficient  to  support   the  defendant's  objections  to  payment.     For 
any  thing,  which  appears  to  the  contrary,  the  boy  Pedro,  the  in 
stituted   heir  of  Durand,  was   the   slave  of  the  plaintiffs,   or  their 
ancestor,  and  took  the  instrument  under  the  will  for  their  benefit, 
in  conformity  with  the  laws  then  in  force.     The  right  to  the  suc 
cession  being  thus  vested   in  them,  they  might  have  instituted  an 
action  for  its  recovery  against  the  executor.      This  they  have  not 
done,  but  now  sue  upon  a  note  given  by  him,  and  another  to  their 
slave  Frosina  ;  being,  as  the  appellants  insist,  a  liquidation  of  Pe 
dro's  succession  to  his  mother,  which  she  could  not  take  in  conse 
quence  of  her  state  of  slavery.     The  former  having  died  since  the 
promulgation  of  the  civil  code,  that  statute,  40  art.  17.  and  158., 
art.  64:.,  is  relied  on  to  establish  the  error,  and  consequent  nullity 
of  the  defendant's  promise  to  pay  the  sum  to  Frosina,  as  stipulated 
in  their  note. 

According  to  the  first  of  these  provisions,  being  a  slave,  she  was 
incapable  to  contract  any  kind  of  engagement    It  is  true,  that  she 


264  SLAVERY. 

could  not  bind  herself  in  any  respect,  because  she  was  without  a 
will ;  nor  could  she  have  entered  into  any  contract  which  would  be 
binding  on  her  owner,  unless  under  special  authorization  by  hirn. 
But  it  does  not  appear  to  us  to  follow,  as  a  necessary  consequence, 
that  the  master  cannot  claim  the  benefit  of  a  lawful  and  voluntary 
engagement  made  in  favor  of  his  slave,  on  an  equitable  considera 
tion,  by  a  person  capable  of  contracting. 

By  the  last  article  cited,  slaves  are  declared  to  be  incap  able  of 
transmitting  their  estates,  as  intestate,  or  of  inheriting  from  others. 
They  certainly  can  transmit  nothing,  for  they  do  not  possess 
any  thing  in  their  own  right ;  neither  can  they  inherit,  clearly  not 
for  themselves  ;  and  perhaps  not  for  the  benefit  of  their  masters. 
The  same  incapacity  is  attached  to  them,  of  giving  and  receiving 
by  donation  inter  vivos,  or  causa  mortis  ;  they  therefore  cannot  take 
by  will  for  themselves.  In  pursuance  of  these  rules,  Frosina  could 
not  succeed  to  the  estate  of  her  son  ;  but  the  owners  had  a  right  to 
claim  it  from  the  testamentary  executor  of  Durand  ;  and  having 
this  right,  it  cannot  properly  be  said  that  no  cause  or  considera 
tion  exists  for  the  note  by  which  he  promised  to  pay  that  amount, 
when  it  is  seen  that  such  promise  enures  to  the  benefit  of  those 
who  have  a  just  and  legal  claim  to  the  succession  of  Pedro.  Con 
sidering  the  note  as  a  liquidation  of  this  succession,  there  is  suffi 
cient  cause  for  the  contract  thus  made  hy  the  executor,  and  has 
been  rightfully  condemned  to  pay  the  sum  therein  stipulated  ;  but 
ought  to  be  exonerated  from  any  other  or  farther  claim  against 
him,  on  account  of  the  estate  willed  by  Durand  to  his  bastard 
child. 


2. 

ROBINSON  v.  GULP.      Nov.  T.  18J2.      1  Constitutional  Court 
Rep.  of  South  Carolina,  231. 

This  was  an  action  on  the  case,  for  procuring,  persuading,  and 
enticing  a  negro  slave  to  depart  and  absent  himself  from  the  ser- 


By  Aikin's  Alabama  Dig.  p.  109.,  it  is  declared,  "that  any  person  or  persons 
being  convicted  of  harboring,  or  concealing  any  negro  or  negroes  belonging  to  any 
other  person  or  persons,  whatsoever,  or  sutfering  the  same  to  be  done  with  his  con- 
Bent  or  knowledge,  shall  be  fined  in  a  sum  not  exceeding  seven  hundred  dollars,  and 


LIABILITY  OF  OTHERS  TO  THE  MASTER  FOR,  &c.  265 

vice  of  his  master.  The  presiding  judge  stated  to  the  jury,  that 
an  act  of  assembly  of  this  state  made  it  a  felony  for  a  person  to  in 
veigle,  entice,  &c.,  a  negro  slave  to  absent  himself  from  his  master  ; 
and,  therefore,  if  they  were  of  opinion  that  the  defendant  in  this 
case  had  committed  the  act  clandestinely  and  secretly,  he  was 
guilty  of  a  felony,  and  the  plaintiff  could  not  recover  ;  because  the 
civil  action  was  merged  in  the  crime.  The  jury  found  for  the 
defendant,  and  this  motion  is  made  to  set  aside  that  verdict,  and 
to  grant  a  new  trial,  on  the  ground  of  misdirection  by  the  court. 

JVbW,  J.     I  can   see   no  good  reason  why  a  civil  action  should 
be  merged  in  a  felony   in   any  case   where  property  is  involved, 
and   the   action  is  for  the  property  itself.     In  England,  a  convic 
tion  for  felony  works  a  forfeiture  of  property,  and  to  suffer  an  ac 
tion  to  be  brought  before  conviction,  would  discourage  prosecu 
tions,  and  deprive  the  king  of  this  part  of  his  revenue  ;  and,  there 
fore,  a  person  is  not  permitted  to  sue  until  after  conviction.     But 
no    such   reason  exists   here,  because  there  is  no  forfeiture.     But 
that  is  not  the  only  ground  upon  which  I  have  formed  my  opinion. 
I   do   not   think  the  question  ought  to  be  tried  in  this  collateral 
way ;    and  much   less   ought   it  to  be  in  the  defendant's  mouth,  to 
discharge  himself  from  the  action  by  saying,  he  had    committed  a 
felony.     Whenever  a  person  sets  forth  a  good  cause  of  action,   in 
his  declaration,  and  supports   his  allegations  by  proof,  I  think  he 
ought   to   recover,  notwithstanding   the  testimony  may  be  such  as 
to   induce    a   belief  that   the  transaction  is  felonious.     A  person 
ought  never  to  be  convicted  of  a  felony,  except  on  a  direct  charge 
of  a  crime,  and  by  a  jury  charged  to  try  the  offence.    If  the  plain 
tiff  had  charged  a  felony  on  the  face  of  his  declaration,  it  would 
have    been  a  question   on   which   it  is  unnecessary  to  give  any 
opinion  at  present.     And   yet,  I   think   he   might   make   use  of 
the   very  words  of  the   act,  and  still  be  entitled  to  recover.     In 
an  action  brought  to  try  the  right  of  property,  the  words  of  the  act 
may  be  proper  words  to  use  in  the  declaration.     Suppose  it  should 
be   proved  that  the  defendant  committed  the  act  in  a  clandestine, 
secret  manner  ;  still  his  object  might  be  only  to  get  possession  of 


shall  be  imprisoned  not  less  than  one  calendar  month,  nor  exceeding  six  calendar 
months;  and  shall  be  liable  in  damages  to  the  party  injured,  to  be  recovered  by 
action  on  the  case  before  any  tribunal  having  competent  jurisdiction."     And  similar 
enactments  are  to  be  found  in  the  statute  books  of  the  other  states. 
34 


266  SLAVERY. 

property  to  which  he  had  a  claim,  and  not  with  a  felonious  inten 
tion.  In  an  action  to  try  the  right  of  property,  quo  animo,  makes 
no  part  of  the  case.  And  it  is  no  answer  to  say,  that  if  the  defen 
dant  has  any  right,  he  may  show  it ;  for  after  the  plaintiff  has 
established  his  right,  the  defendant  may  he  satisfied  that  it  is  in 
vain  to  contend  farther.  Indeed,  in  such  a  case,  it  would  be  for 
his  interest  not  to  do  it,  if  he  might  thereby  give  the  case  the  ap 
pearance  of  felony,  and  nonsuit  the  plaintiff,  after  having  esta 
blished  a  right  to  the  property.  I  am  of  opinion  a  new  trial  ought 
to  be  granted. 

Justices  Bay  and  Grimke  concurred. 


(XVIII.)  OF  RUNAWAY  OR  FUGITIVE  SLAVES, 

1. 

GLEN  v.  HODGES.    Jan.  T.  1812.      9  John's  Rep.  67. 

A  fugitive       Trespass  for  taking  the  plaintiff's  man  slave.     The  plaintiff,  the 
tractingT"  owner  of  the  slave,  went  into  Vermont  after  his  runaway  slave, 

other  staate~   Wn°  had  fled  fr°m  him  in  this  StatC)  ^    h&d    resided  in    Rutland, 

will  not  Vermont,  four  years  as  a  freeman.     After  the  slave  was  taken  by 

creditor    °  the  plaintiff,  the  defendant  took  out  an  attachment  against  the  slave 

takinglyhim  ^>r  deK  on  which  he  was  arrested  and  forcibly  taken  out  of  the 

on  a  pro-  p]aintiff ' s  possession,  and  sent  to  prison.     The  judge  who  tried  the 

cess  out  of  r 

the  hands    cause  thought  the  plaintiff  was  not  entitled  to  recover,  and  a  non- 
terwhohas  suit  was  entered,  with  liberty  to  move  the  court  to  set  it  aside, 
him— the         Per  Cur'     There  is  no  doubt  the  negro  was  the  property  of  the 
contract      plaintiff,  and  had  run  away  from  service  in  Vermont.    He  was  held 
Slave  being  to  service  or  labor  under  the  laws  of  this  state,  when  he  escaped, 
and  the  escape  did  not  discharge  him  ;  but  the  master  was  entitled 
to  reclaim  him  in  the  state  to  which  he  fled.     This  is  according  to 
the  provision  in  the  constitution  of  the  United  States,  art.  4.  §  2., 
and   the  act  of  Congress   of  the    12th  of  Feb.    793.,  Laws   U. 
States,  vol.  2.  p.  165.,  prescribes  the  mode  of  reclaiming  the  slave. 
It  not  only  gives  a  penalty  against  any  person  who  shall  knowingly 
and  willingly  obstruct  the  claimant  in  the  act  of  reclaiming  the 
fugitive,  but  saves  to  such  claimant  "  his  right  of  action  for  any  in 
jury"  he   may  receive  by  such   obstruction.     The   plaintiff  was, 


OF  RUNAWAY  OR  FUGITIVE  SLAVES.  267 

therefore,  in  the  exercise  of  a  right,  when  he  proceeded  to  reclaim 
the  slave  ;  and  the  simple  question  is,  whether  the  defendant  is  not 
responsible  in  trespass,  for  rescuing  the  slave,  though  he  did  it  un 
der  the  form  and  color  of  an  attachment  for  a  debt,  alleged  to 
have  been  contracted  with  him  by  the  slave.  The  negro  being  a 
slave,  was  incapable  of  contracting  so  as  to  impair  the  right  of  his 
master  to  reclaim  him.  A  contrary  doctrine  would  be  intolerable, 
so  far  as  it  respects  the  security  of  the  owners  right,  and  would 
go  to  defeat  the  provision  altogether.  The  defendant,  therefore, 
contracted  with  the  negro,  and  sued  out  the  attachment  at  his  peril. 
It  was  a  fraud  upon  the  master's  right.  The  fact  being  esta 
blished,  that  the  negro  was  a  fugitive  slave,  the  attachment  was  no 
justification  to  the  party  who  caused  it  to  be  sued  out.  This  must 
have  been  so  adjudged,  if  the  point  had  been  raised  in  Vermont, 
because  the  entering  into  a  contract  with  such  slave,  and  the  en 
deavor  to  hold  him  under  that  contract,  contravened  the  law  of  the 
United  States,  which  protects'the  master  or  owner  of  fugitive  slaves 
in  all  his  rights  as  such  owner.  If  the  slave  had  committed  any 
public  offence  in  Vermont,  and  had  been  detained  under  the  au 
thority  of  the  government  of  that  state,  the  case  would  have  been 
different,  and  the  right  of  the  master  must  have  yielded  to  a  para 
mount  right.  But  the  interference  of  any  private  individual,  by 
suing  out  process,  or  otherwise,  under  the  pretence  of  a  debt  con 
tracted  by  the  negro,  was  an  illegal  act,  and  void  ;  and  there  can 
be  no  objection  to  the  action  being  brought  here,  though  the  ac.t 
happened  out  of  the  state.  The  action  is  transitory. 
Motion  for  a  new  trial  granted. 

2. 

THE  COMMONWEALTH  v.  HALLOWAY.     January  T.  1817. 
3  Serg.  &  Rawle's  Rep.  4. 

Habeas  Corpus  to  the  keeper  of  the  Philadelphia  prison,  at  the  A  fugitive 
instance  of  the  master,  to  bring  up  the  body  of  David  Johnson,  his  has^com!0 

slave,  who  had  been  committed  for  fornication  and  bastardy.  muted  for 

nication 
It  was  contended,  that  the  master  could  not  take  away  his  slave  and  bastar- 

charged  with  a  crime.     That  it  had  been  so  decided   by  Judge  be'  deliver- 
Rush,  in  Nov.  1816,  and  before  the  Chief  Justice,  1814, 


Per  Cur.  Tilghman,  Ch.  J.  From  the  evidence  which  has  less  securi- 
been  given,  we  have  no  doubt  of  David  Johnson  being  the  slave  of  to  maintain 
Mr.  Frazier;  and  there  would  be  no  objection  to  delivering  him  up  l 


268  SLAVERY. 

to  him,  but  for  the  commitment  for  fornication  and  bastardy.  For 
nication  has  always  been  prosecuted  in  this  state  as  a  crime.  By 
the  law  of  1705,  it  was  subject  to  the  punishment  of  whipping,  or 
the  fine  of  10  pounds,  at  the  election  of  the  culprit.  The  punish 
ment  of  whipping  has  been  since  abolished  ;  but  the  act  of  fornica 
tion  is  still  considered  as  a  crime  ;  and  where  it  is  accompanied 
with  bastardy,  security  must  be  given  to  indemnify  the  county 
against  the  expense  of  maintaining  the  child.  It  may  be  hard  on 
the  owner  to  give  this  security,  or  lose  the  services  of  the  slave; 
but  it  is  an  inconvenience  to  which  this  kind  of  property  is  una 
voidably  subject.  The  child  must  be  maintained  ;  and  it  is  more 
reasonable  that  the  maintenance  should  be  at  the  expense  of  the 
person  who  has  a  right  to  the  service  of  the  criminal,  than  at  that  of 
the  people  of  this  city,  who  have  no  such  right.  I  am  of  opinion  the 
prisoner  should  be  remanded.  Yates  and  Gibson,  Js.,  concurred. 

3. 
JARRETT  v.  HIGBEE.     Oct.  T.  1827.     5  Monroe's  Rep.  546. 

Taking  up      Jarrett  brought  trespass  against  Higbee  for  taking  and  imprisoning 

runaw'ayhl  his  slave.     Defendant  pleaded  that  he  apprehended  the  slave  as  a 

fndd  u^on  runawa>r>  &c-     The  defendant  admitted,  that  when  he  took  the 

reasonable  slave  up,  he  produced  the  following  pass  or  paper  from  his  master  : 

a  justifica-       "Know  all  men  by  these  presents,  that  I,  J.  Jarrett,  of  Livingston, 

and  state  of  Kentucky,  do  agree  that  this  black  man  Allen,  do 

bargain  and  trade  for  himself  until  the  first  day  of  May  next ;    and 

also  for  to  pass  and  repass  from  Livingston  county,  Kentucky,  to 

Monongahela  county,  state  of  Virginia,  Morgantown,  and  then  to 

return  home  to  the  same  Livingston  county,  Kentucky,  again,  near 

the  mouth  of  Cumberland  river,  Sraithland.    Given  under  my  hand 

this  26th  day  of  Sept.  1822." 

The  plaintiff  moved  the  court  to  instruct  the  jury,  that  if  they 
believed  that  the  slave  was  possessed  of  the  pass  produced  in  evi 
dence,  and  did  exhibit  it  to  the  defendant  when  taken  up,  and  that 
the  same  was  executed  and  delivered  to  the  slave  by  the  master, 
it  should  have  protected  him,  and  his  arrest  was  illegal.  The 
court  refused  to  give  the  instructions  prayed  for ;  but  instructed 
the  jury,  that  if  the  defendant  took  up  the  slave  in  good  faith,  hav 
ing  reasonable  grounds  to  suspect  he  was  a  runaway,  he  was 
justifiable. 

Per  Cur.  Bibb,  Ch.  J.  The  instructions  asked,  supposes  that 
Higbee,  and  all  others,  were  bound  at  their  peril  to  yield  obedience 


OF  RUNAWAY  OR  FUGITIVE  SLAVES.  269 

to  the  permit  contained  in  the  paper  exhibited.     To  this  the  court 
cannot  assent.    The  paper  contains,  on  the  part  of  the  plaintiff,  an 
agreement  that  the  slave  shall  bargain  and  trade  for  himself,  from 
the  26th  September,  till  the  first  of  May,  and  pass  and  repass  from 
Livingston  in  Kentucky,  to  Morgantown  in  Virginia.     However 
well  satisfied  the  master  may  have  been  to  turn  his  slave  loose 
upon  society,  to  bargain  and  trade  for  himself,  and  to  ask  society 
to  it,  yet  it  does  not  follow  that  society  was  bound  to  submit  to  it. 
Without  attempting  to  define  what  shall  be  the  form   of  a  law 
ful   pass,  or  permit,  to  a  slave,  it  may  be  safely  affirmed,  that  no 
paper  can  be  such  a  one,  which  on  its  face  is  a  violation  of  public 
policy,  and  the  security  of  society ;  which  shows  that  the  slave  is 
going  at  large,  to  do  that  which  is  forbidden  expressly  by  the 
statute  law.     That  slaves  shall  not  be  frivolously  arrested,  when 
proceeding  on  the  lawful  business  of  the  owner,  or  when  acting  in 
their  proper  and  lawful  sphere,  by  permission  of  the  owner,  is  due 
to  the  master  and  his  right  of  property.     That  the  master  shall  not 
let  loose  his  slave,  with  a  permit  from  him  to  violate  the  established 
order  and   economy  prescribed  by  law  in  relation  to  slaves,  is  due 
to  society.     These  interests  of  the  master  on  the  one  hand,  and  of 
society  on  the  other,  are  concerned  in  the  question  involved  in  this 
controversy.     But  without  abridging  the  lawful  powers  of  the  mas 
ter,  to  use  his  property  in  the  slave,  it  may  be  safely  declared  that 
this  paper  given  by  the  master  in  the  slave  violated  that  duty  which 
he  as  owner  owed  to  the  laws  and  to  society. 

The  paper  contained  the  master's  assent  and  permission  to  the 
slave  to  go  at  large  from  September  to  May  ;  from  Smithland  to 
Morgantown,  to  bargain  and  trade  for  himself,  contains  an  autho 
rity  to  hire  himself,  as  well  as  to  buy  and  sell,  and  deal  in  articles 
and  commodities  without  a  specification  or  limitation.  These 
permissions,  and  such  acts  of  the  slave,  are  violations  by  master 
and  slave,  of  the  policy,  spirit,  and  letter  of  the  statute  16th  Dec. 
1802,  against  permitting  slaves  to  go  at  large  and  hire  themselves. 
2  Dig.  1 159.;  and  the  12th  sect,  of  the  act  of  1789,  2  Dig.  1152., 
against  buying,  selling,  or  receiving  to,  or  from,  or  by  a  slave  with 
out  a  note  in  writing  from  the  master  expressive  of  the  article.  To 
pass  and  repass  from  Smithland  to  Morgantown,  from  the  extreme 
southwestern  to  the  northeastern  limit  of  the  state,  and  beyond 
into  Virginia,  to  range  in  this  direction  from  September  to  May, 
bargaining  and  trading  for  himself,  is  certainly  going  at  large  in 


270  SLAVERY. 

hostility  to  the  settled  order  intended  to  be  maintained  by  our  stat 
utes.  Such  licenses  would  tend  to  beget  idle  and  dissolute  habits 
in  the  particular  slaves  so  indulged,  as  well  as  in  others,  and  lead 
to  depredations  upon  the  property  of  others,  and  to  crimes  and 
insubordination.  To  such  licenses  and  indulgences  society  are 
not  bound  to  submit ;  the  master  has  no  right  to  give  such.  Every 
person  to  whom  such  a  permit  was  exhibited  by  a  slave,  might 
well  suspect  its  authenticity.  It  was  not  a  lawful  pass  or  permit, 
it  was  a  species  of  temporary  and  unlawful  manumission  ;  unlaw 
ful  in  its  purpose  and  duration,  wanting  the  solemn  form,  sanction, 
authentication,  and  safeguard,  as  a  deed  of  emancipation,  and  by 
its  terms  and  purposes,  showing  that  the  slave  was  not  proceeding 
upon  the  lawful  business  of  the  master,  but  at  the  will  and  for  the 
purposes  of  the  slave  himself. 

4. 
JARRETT  v.  HIGBEE.     Oct.  T.  1827.     5  Monroe's  Rep.  546. 

The  court  held,  that  reasonable  grounds  to  suspect  the  slave  a 
runaway  will  justify  taking  him  up. 

The  warrant  of  commitment  by  the  justice  is  evidence  of  pro 
bable  cause. 

5. 
HUTCHINS  v.  LEE.  Dec.  T.  1827.  Walker's  Mississippi  Rep.  293. 

The  provi 
sions  in  the      per  Cur    Turner,  J.   In  this  case,  we  have  been  furnished  with  an 

e  of  elaborate  and  able  report  of  the  judge  who  presided  at  the  trial  of  the 
Le  cause  in  the  Claiborne  circuit  court,  which  we  here  insert.  This 
di-  report  js  so  fa\\y  ana  the  subject  placed  in  a  view  so  perspicuous,  that 
anTa^non-  there  is  nothing  left  for  this  court  but  to  give  the  case  due  considera- 
anJePwith  tion.  After  mature  reflection,  and  a  careful  examination  of  the  au- 
?JiSonspr°"  thorities  cited  in  the  report,  I  concur  entirely  with  the  opinion  of  the 
does  not  court  below,  and  with  the  principles  and  reasons  therein  contained. 
tLsale.  If  The  judgment  of  the  court  below  is,  therefore,  affirmed, 
sell  foTfess  Judges  Black  and  Winchester  concurred. 

money,  be- 

any^neg-  Report — By  Hon.  Judge  CHILD. 

sheriff  to6  Appeal  from  the  circuit  court  of  Claiborne  county.  As  the  de- 
duty°thSre-  cision  under  consideration  in  this  case  was  made  on  the  circuit  by 
medy  is  by  the  judge  Qf  the  first  district,  by  art.  5.  sec.  2.  of  the  constitution, 
against  the  it  becomes  my  duty  to  report  to  the  supreme  court  the  reasons 
!°r  upon  which  that  opinion  was  founded.  This  was  not  a  hasty,  in- 


OF  RUNAWAY  OR  FUGITIVE  SLAVES.  271 

considerate  decision,  made  in  the  hurry  of  business  at  nisi-prius. 
On  the  contrary,  it  was  made  under  all  the  advantages  that  an 
elaborate  research  of  six  months  could  bestow,  surrounded  with 
complete  libraries,  and  with  ample  time  for  thought  and  reflection. 
The  case  is  an  action  of  detinue  for  a  runaway  slave,  by  the  ori 
ginal  owner  against  the  vendee  at  sheriff's  sale.  The  single  point 
propounded  for  investigation  and  decision  fully  appears  in  the  bill 
of  exceptions  which  is  made  a  party  of  the  record. 

The  cause  was  considered  by  the  circuit  court  in  three  aspects : 

1.  Upon  the  strength  of  decided  cases  in  point,  and  the  weight 
of  authority  to  be  found  in  analogous  decisions. 

2.  As  a  vexed  question,  to  be  determined   upon  the  reasons  of 
the  case,  with  a  view  to  public  policy,  and  the  state  of  society,  where 
the  rule  was  to  operate,  as  law  hereafter,  in  similar  cases, 

3.  As  a  new  question,  and  difficult,  when  considered  with  a 
view  to  the  past,  present,  and  future  sales  of  a  similar  nature  in  a 
slave   holding  state.     On  the  part  of  the  plaintiff,  it  was  insisted 
upon  the  first  point,  that  this  was  a  naked  power,  not  coupled  with 
an  interest,  and  that  in  order  ta  make  the  sale  valid,  every  pre-re- 
quisite  to  the  creation  and  execution  of  the  power  should  precede 
its  completion  ;  and  cited  4  Wheaton's  Rep.  77.  79.;  Williams  v. 
Peyton,  4  Cranch's  Rep.  403.;  Steel's  exr.  v.  Course,  9  Cranch's 
Rep.  64.  ;  Parker  v.  Rule's  lessee,  and  Sugden  on  powers,  were 
relied  on.     On  the   part  of  the  defendant  it  was  contended,  that 
these  cases  in  Wheaton  and  Cranch  did  not  apply  :  because  there, 
the  decisions  went  entirely  upon  the  ground  of  notice  to  the  ori 
ginal  proprietor,  in  whom  the  property  remained  until  the  sale  had 
actually  taken   place  ;  but  in  the  case  of  a  runaway  slave,  or  an 
estray,  so  soon  as  the  time  of  the  first  publication  expired,  accord 
ing  to  law  the  property  in  the  runaway  slave  vested  in  the  county, 
the  same  as  an  estray  at  common  law,  vested  in  the  king,  or  lord 
of  the  liberty.    Jacob,  441  ;   1  Black.  Com.  297.,  and  cases  there 
cited.     It  is  said  an  estray  is  any  valuable  animal  that  is  not  wild, 
found  within  a  lordship,  and  whose  owner  is  not  known  ;  in  which 
case  if  it  be  tried  and  proclaimed  according  to  law,  and  not  claimed 
by  the  owner  within  a  year  and  a  day,  it  belongs  to  the  king,  with 
out  even  the   equity  of  redemption.     So,  by  our  runaway  slave 
laws,  R.  C.  page  376-7.,  and  Estray  Laws,  S.  B.  page  331.,  after 
being  proclaimed  according  to  law,  in  the  case  of  a  runaway  slave, 
six  months,  and  in  the  case  of  an  estray  twelve  months,  the  slave, 
or  estray,  belongs  to  the  county,  to  be  sold  according  to  law  ;  and 


272  SLAVERY. 

in  both  these  cases  the  provisions  of  the  statute  are  'purely  direc 
tory  ;  and  whether  complied  with,  or  not,  cannot  affect  the  title  of 
the  vendor  at  such  sale,  without  fraud  ;  who,  upon  the  strictest 
rule  of  caveat  emptor  is  only  required  to  see  the  pre-requisites  to 
the  property  vesting  in  the  county,  had  been  complied  with,  and 
preserve  them  as  monuments  of  his  title.  In  a  much  stronger 
case  than  the  present,  reported  in  4  Dall.  Rep.  220.,  the  court  say 
it  has  been  urged,  that  there  is  no  proof  that  advertisements  of  the 
sale  were  posted  up  at  public  places  ;  but  if  the  sale  was  a  fair  one, 
we  regard  this  as  a  very  feeble  objection. 

The  act  of  making  such  advertisements  is  the  duty  of  the  sheriff; 
is  a  matter  merely  directory,  and  should  not  affect  the  title  of  a 
bonafide  purchaser  ;  and  I  think  the  case  would  be  a  much  harder 
one,  if  the  original  proprietor  of  a  runaway  slave  could  be  permitted 
to  disturb  the  title  of  a  bonafide  vendee  at  sheriff's  sale,  on  account 
of  irregularity  in  the  sale,  subsequent  to  the  title  vesting  in  the 
county.  If  the  amount  of  sale  has  been  diminished  for  want  of  le 
gal  notice  to  purchasers,  his  remedy,  if  any,  is  against  the  officers 
as  in  other  cases.  In  this  case,  all  the  pre-requisites  to  vesting  the 
title  in  the  county,  were  complied  with,  and  the  plaintiff 's  claim  is 
the  amount  of  the  proceeds  of  sale,  after  deducting  costs,  charges 
and  commissions.  One  reason  why  the  cases  from  Wheaton  and 
Cranch  do  not  apply  here,  is  because  those  cases  were  decided 
upon  the  ground  that  there  was  a  defect  of  notice  to  the  proprie 
tor  :  here  the  proprietor  had  a  strict  legal  notice  in  every  particu 
lar  p re-requisite.  But  the  most  striking  feature  which  redeems 
this  case  from  the  operation  of  all  the  authorities  cited  by  the  plain 
tiff,  with  reference  to  private  special  powers,  is,  that  in  those  cases 
an  actual  sale  in  strict  pursuance  of  the  power,  is  necessary  to  a 
divestiture  of  title ;  but  in  this  case,  the  title  is  good  before  the 
pre-requisites  of  sale  commenced.  When  an  execution  is  placed 
in  the  hands  of  the  sheriff,  it  constitutes  a  general  lien  upon  all  the 
property  of  the  defendant  ;  and  when  a  levy  is  actually  made,  the 
property  is  in  the  sheriff,  pro  tanto,  for  all  the  purposes  of  sale  to 
satisfy  the  execution.  And  in  such  cases,  the  law  protects  bona 
fide  purchasers  without  fraud,  although  the  sheriff  may  render  him 
self  liable  for  misconduct.  In  accordance  with  this  doctrine,  it  is 
laid  down  in  2  Bacon,  741  (a.)  if  upon  his  judgment,  the  plaintiff 
takes  out  a  writ  of  fieri  facias  and  thereupon  the  sheriff  sells  a  term 
for  years  to  a  stranger,  and  the  judgment  is  afterwards  reversed, 
the  defendant  shall  only  be  restored  to  the  money  for  which  the 


OF  RUNAWAY  OR  FUGITIVE  SLAVES.  273 

term  was  sold,  and  not  the  term  itself;  for  by  the  writ,  the  sheriff 
had  authority  to  sell,  and  if  the  sale  may  be  avoided,  afterwards, 
few  would  be  willing  to  purchase  under  execution,  which  would 
render  writs  of  execution  of  no  effect 

2d.  Although  this  doctrine  contemplates  the  reversal  of  a 
judgment,  and  the  subversion  of  the  authority  by  virtue  of  which 
the  execution  issued,  yet,  in  order  to  protect  the  bonafide  pur 
chasers  and  grant  titles,  the  sale  under  such  circumstances  will  be 
held  valid, 

Again,  in  the  case  of  Goodyire  v.  Price,  Cro.  p.  246.,  the  ques 
tion  was  moved,  whether,  {'on  the  reversal  of  a  judgment  for  er 
ror,  under  which,  by  writ  of  eligit,  a  lease  for  years  of  tithes  had 
been  delivered  to  plaintiff,  in  satisfaction  of  his  debts,)  the  party 
should  be  restored  to  the  lease  itself,  or  the  value  for  which  the 
sheriff  had  delivered  it.  The  court  unanimously  determined,  that 
the  lease  should  be  restored ;  for,  say  they,  "  there  is  a  difference 
between  the  delivery  upon  an  eligit  to  the  party  himself,  and  a 
sale  to  a  stranger  upon  a  fieri  facias,  for  the  fieri  facias  authority  to 
the  sheriff  to  sell ;  wherefore,  when  he  sells  a  term  to  a  stranger, 
although  the  execution  is  reversed,  yet  he  shall  not,  by  virtue 
thereof,  be  restored  to  the  term,  but  to  the  monies,  because  he  be 
comes  duly  thereto,  by  act  of  sale." 

In  unison  with  these  authorities  was  the  determination  of  Judge 
Spencer,  in  the  suit  of  Sandford  v.  Roosa,  12  Johns.  Rep.  162.  That 
a  sale  of  lands  even  on  a  junior  execution  was  good,  and  the  court 
remarked  :  "  the  only  remedy  the  one  whose  execution  was  first 
delivered  has,  is  by  action  against  the  sheriff."  Notwithstanding, 
in  this  instance,  the  property  sold  was  bound  and  subject  to  the 
elder  execution,  yet,  the  sale  thereof,  under  the  junior  executions 
was  pronounced  legal  and  valid  ;  doubtless  on  considerations  of 
public  policy  and  expediency.  If  a  sale  of  real  property  or  lands, 
under  such  circumstances,  conveys  a  good  title  to  the  purchaser, 
a  fortiori,  a  disposition  of  personal  estate,  under  like  circum 
stances,  will  vest  an  indisputable  title  in  the  vendee.  In  the  case 
under  consideration,  by  the  expiration  of  six  months,  and  due  pub 
lication  made  during  that  period  of  the  apprehension,  incarcera 
tion,  and  description  of  the  slave  in  controversy,  as  required  by  the 
statute,  the  absolute  title  to  him,  analogously  to  the  doctrine  of 
estrays,  vested  in  the  countv.  If  this  conclusion  be  undeniable, 
the  plaintiff  then,  it  follows  irresistibly,  cannot  maintain  this  action, 
though  the  sale  were  void.  The  statute  having  divested  him  of  the 
35 


274  SLAVERY. 

property,  his  right  of  action  is  gone  ;  and  in  such  cases  the  max 
im  of  law  is  "portior  est  conditio  defententis" 

The  statute  provides,  on  the  subject  of  runaway  slaves,  that  an 
advertisement  describing  the  person,  &c.,  inserted  in  some  public 
newspaper,  for  the  space  of  six  months,  and  no  owner  having 
claimed,  and  proved  his  right  thereto,  at  or  before  the  expiration 
of  six  months,  it  shall  be  lawful  for  the  sheriff  to  sell,  £c.  On 
an  observance  of  these  pre-requisites  mentioned,  an  absolute  power 
accrues  to  the  sheriff  to  sell,  and  with  regard  to  authority,  his  situa 
tion  is  the  same  as  if  acting  under  the  sanction  of  a  judgment  of  a 
court  of  record  :  he  is  equally  empowered  by  the  one,  as  by  the 
other;  and  these  provisons  of  the  statute,  which  prescribe  the  terms 
of  sale  to  the  officer,  whether  under  execution,  or  a  runaway  slave, 
under  the  statute,  are  purely  directory,  as  before  contended;  and 
should  any  of  the  minutiae  be  omitted  by  the  sheriff,  it  will  not 
invalidate  the  sale,  but,  if  it  sell  for  a  less  amount,  on  account  of 
such  omission,  indemnification  may  be  obtained  upon  his  official 
responsibility.  The  principles  here  contended  for,  are  recognized 
and  established  by  an  authority,  or  case,  in  2  Bibb's  Rep.  402. 
(202.)  This  case  was  entirely  analogous  to  the  one  under 
consideration.  It  was  an  action  for  the  recovery  of  slaves,  &c.  In 
2  Bay's  Rep.,  is  also  a  case  in  point.  Such  are  the  reasons,  and 
such  the  authorities  upon  which  the  decision  below  was  founded. 
If  a  runaway  slave  be  considered  in  the  light  of  an  estray,  then 
the  original  proprietor  loses  his  title  under  the  six  months*  adver 
tisement  and  proclamation  ;  and  he  must  then  rely  upon  the  pur 
chase  money,  or  go  upon  the  officer  for  damages.  And  in  the 
second  place,  if  it  be  lawful  for  the  sheriff  to  sell  on  the  expira 
tion  of  six  months,  the  requisitions  of  the  statute,  as  to  the  manner 
of  sale,  are  purely  directory,  and  the  vendee,  without  fraud,  is  pro 
tected  in  his  title  against  the  owner,  where  remedy  is  the  same  as  in 
other  cases  where  the  power  to  sell  accrues  by  operation  of  law. 
As  to  the  other  consideration  ;  if  this  is  to  be  considered  a  new 
or  vexed  question,  or,  as  the  English  judges  sometimes  term  it,  an 
integral  point.  I  believe  the  gentlemen  of  the  bar,  as  well  as  the 
court,  are  unanimous  in  the  opinion,  that  the  judgment  ought 
to  be  affirmed  ;  it  is,  therefore,  neither  necessary  nor  expedient  to 
discuss  those  points  again. 


OF  RUNAWAY  OR  FUGITIVE  SLAVES.  275 

G. 

LABRANCHK  v.  W  ATKINS.  June  T.  1816.    4  Martin's  Louisiana 

Rep.  391. 

Per  Cur.     Martin,  J.     The  plaintiff  complains  that  the  defend-  A  runaway 
ant  detains  his  negro  slave.    The  defendant  answers,  that  the  slave 


ran  away,  and  was  delivered  to  him  as  jailor  ;  that  he  advertised  and  b.y  the  she- 
detained  him  during  the  time  prescribed  by  law,  and  finally  sold  years  after 
him,  after  having  obtained  the  permission  of  the  parish  judge  ;  that  th* 


he  has  since  bought  the  vendee's  title  to  the  slave,  under  which  he  tisement. 
now  holds  him.  The  facts,  as  agreed  upon  by  the  counsel  of  the 
parties,  are  these  :  The  slave  was  brought  to  jail  on  the  20th  of 
July,  1813  ;  and  on  the  16th  of  August,  the  defendant  wrote  to  a 
person  in  New  Orleans  to  advertise  the  negro  three  times,  accord 
ing  to  practice.  There  is  no  other  evidence  of  any  compliance 
with  the  defendant's  directions  in  this  respect,  except  a  newspaper, 
bearing  date  of  the  3d  of  September,  1813  ;  and  the  29th  of 
August,  1815,  the  sale  took  place.  There  is  not  any  date  to  the 
petition  of  the  defendant  for  the  judge's  leave,  nor  to  the  judge's 
order  thereon.  The  only  fact  stated  in  this  petition  is,  "  that  the 
negro  had  been  confined  as  a  runaway  two  years,  completed  on 
the  29th  of  July,  1815."  The  compliance  with  any  requisites  of 
the  law  is  not  alleged  ;  it  is  not  stated  that  the  negro  was  not 
claimed.  The  slave  was  sold  by  the  defendant  to  Henry  Wyatt, 
who  immediately  afterwards,  viz.  on  the  same  day,  conveyed  all 
his  rights  therein  for  the  price  at  which  it  was  sold  to  him.  The 
plaintiff  produced  a  notarial  act  of  sale,  as  evidence  of  his  title, 
which  does  not  appear  to  have  been  questioned.  On  the  20th  of 
September,  1814,  he  sent  his  son  to  claim  the  negro,  with  a  letter 
to  the  parish  judge,  complaining,  that  from  the  defendant's  neglect 
to  advertise  the  negro,  as  the  law  requires,  he  had  not  till  then  any 
knowledge  of  his  confinement.  Eighty  dollars  were  offered  to  the 
defendant  for  his  charges  ;  but  he  claimed  one  hundred  and  eighty. 
On  the  acknowledgement  of  the  defendant's  deputy,  that  the 
negro  had  been  advertised  in  one  paper  only,  the  parish  judge 
made  an  order  for  his  delivery,  on  payment  of  two  months'  ex 
penses,  and  the  fees  of  arrest  ;  but  the  defendant  refused  to  deliver 
the  negro  thereon.  It  is  admitted  that  the  negro  was  sick  ;  that 
at  the  time  of  the  plaintiff's  application  the  doctor's  bill  amounted 
to  eight  dollars,  and  afterwards  rose  to  forty-one  ;  that  he  was  not 
confined,  worked  out,  and  attended  the  defendant's  deputy  as  a 
servant.  On  these  facts,  the  district  court  gave  ju%ment,  that  the 


276  SLAVERY, 

plaintiff  recover  the  negro  from  the  defendant,  and  one  hundred 
and  eighty-five  dollars  and  twenty-five  cents  for  hi& damages  ;  and 
'  the  defendant  appealed.  The  28th  section  of  the  first  part  of  the 
black  code  provides,  that  runaway  slaves  shall  he  advertised,  in  at 
least  two  newspapers,  in  French  and  English,  during  three  months 
successively,  and,  after  that  time,  once  a  month  during  the  remain 
der  of  the  year.  They  shall  be  employed  and  kept  at  work  for 
the  county,  by  whom  clothing,  medicine,  attendance,  and  mainte 
nance  shall  be  found  ;  but  these  expenses  shall  he  discharged  by 
the  owner,  when  the  negro  cannot  be  usefully  employed. 

The  next  section  provides,  that  if  the  owner  do  not  reclaim  the 
negro  within  two  years  from  the  date  of  the  adveitisement  in  the 
newspaper,  in  compliance  with  the  preceding  section,  he  shall 
he  sold  by  the  sheriff,  with  the  permission  of  the  judge,  after  three 
advertisements,  for  the  payment  of  the  charges,  to  be  fixed  by  the 
judge.  Now,  the  case  under  consideration  does  not  appear,  irom, 
the  petition  or  order,  to  be  one  in  which  the  sale  could  be  ordered. 
The  negro  is  stated  to  have  been  in  jail  two  years ;  but  the  law 
allows  only  the  sale  of  slaves  who  have  been  unreclaimed  during  two 
years  not  after  the  arrest,  but  after  the  date  of  the  first  advertise 
ment.  The  parish  judge  can  only  order  the  slaves  advertised  for 
one  year  ;  the  ease  on  paper  does  not  show  that  the  negro  was  ad 
vertised  at  all.  Admitting  even  that  the  order  justified  the  sale, 
(which  we  clearly  think  it  does  not,)  the  testimony  on  record  shows 
that  no  legal  sale  has  taken  place.  The  defendant  sold  to  himself. 

Wyatt  lent  his  name.    This  fact  results  from  the  evidence  spread 

on  the  record.  A  runaway  negro  is  delivered  to  the  jailor,  who 
neglects  advertising  him  according  to  law  ;  the  owner,  however, 
hears  of  the  capture  of  his  slave,  makes  himself  known,  claims  his 
property,  tenders  more  than  is  due,yet  the  slave  is  withheld .  The  jai 
lor  obtains  an  order  of  sale,  without  any  allegation  or  proof  of  the 
case  being  one  in  which  the  law  authorises  a  sale  ;  he  sells  the  slave 
after  oneadvertisement,while  the  law  requires  three ;  executes  a  deed 
of  sale  to  a  man,  who  instantly  transfers  all  his  right  to  the  jailor. 
We  are  of  opinion,  that  the  order  of  sale  was  rendered  in  a  case  in 
which  the  judge  who  granted  it,  from  the  very  proceedings,  does 
not  appear  to  have  had  any  authority  to  exercise.  It  consequently 
must  be  viewed  as  a  nullity.  The  defendant,  from  the  testimony 
in  the  case,  made  a  fraudulent  attempt  to  divest  the  plaintiff  from 
his  title  in  the  slave.  The  damages  allowed  to  the  latter  do  not 
appear  to  us  too  high.  Judgment  affirmed,  with  costs. 


OF  RUNAWAY  OR  FUGITIVE  SLAVES.  277 

7. 

PALFREY  v.  RIVAS.   Jan.  T.  1820.     7  Martin's  Louisiana  Rep. 

371. 

Martin,  J.     The  petition  charges,  that  the  defendant  having  ar- 
rested  the  plaintiff's  runaway  slave,  instead  of  pursuing  the  means 

keeps  him 

which  the  law  directs,  in  order  to  secure  mm,  kept  hirn  at  work  four  or  five 


on  his  own  plantation  for  fourteen  or  fifteen  days  ;  after  which  the 

slave   escaped,  and  has  never  been  heard   of  since.     There  was  sen'1.s  im~ 

mediate 

judgment  for  the  defendant,  and  the  plaintiffappealed.     From  the  word  to  the 
statement  of  facts,  which  consists  of  the  depositions  of  a  number  fJring'to  " 
"of  witnesses,  it  appears,  that  the  defendant  arrested  the   plaintiff's  hJm^and 
slave  on  a  Sunday,  secured  him  in  strong  iron  fetters,  and  informed  the  latter 

,1         ,   .    A.,~     ~    ,  .  enters  into 

the  plaintin  ol  the  capture,  proposing  to  purchase  the  slave.     He  a  treaty 
also  procured  a  gentleman  of  the   neighborhood   to  address  the  an^nThe 
plaintiff  on  the  same  subject.    Both  letters  reached  (he  plaintiff,  who  mean  time 
immediately  addressed  the  gentleman  who  had  written,  at  the  de-  escapes, 
fendant's  request,  enclosing  a  small  sum  to  defray  the  expenses  of  ^find 
the  capture,  and  requesting  him  to  inform  the  defendant  that  he  J°r  jhe  de~ 

iGndciiity 

might  have  the  negro  for  a  price  which  was  then  fixed.  In  the  thesu- 
meantime,  during  the  night  between  the  Thursday  and  Friday  fol- 
lowing  the  slave's  arrest,  he  effected  his  escape.  In  the  letter  of 
the  plaintiff  to  his  friend,  desiring  him  to  offer  the  slave  for  sale  to 
the  defendant,  he  requested  that,  if  the  offer  was  not  accepted,  the 
slave  might  be  taken  to  a  blacksmith,  put  in  irons,  and  kept  till  an 
opportunity  to  send  him  to  New  Orleans  presented  itself;  but,  if 
none  could  be  had  shortly,  that  he  might  be  sent  to  jail.  The  fet 
ters  put  on  him  by  the  defendant  are  sworn  to  have  been  very 
strong,  and  in  the  opinion  of  the  witnesses  such  as  precluded  the 
idea  of  his  escape.  The  defendant,  it  appears,  treats  thus  the  ne 
groes  whom  he  arrests,  and  makes  no  charge  against  the  owners. 
The  plaintiff  relies  on  the  act  of  1816,  2  Martin's  Digest,  514. 
n.  6.,  which  provides,  that  whenever  a  slave  shall  be  apprehended, 
he  shall  be  taken  before  the  parish  judge,  or  the  next  justice  of  the 
peace,  who  shall  make  inquiry  as  to  his  name,  and  that  of  his  own 
er,  and  send  him  to  jail,  &c.  He  contends,  that  as  the  defendant 
did  not  comply  with  the  requisites  of  the  law,  he  must  be  liable 
for  the  consequences.  On  the  part  of  the  defendant,  it  is  insisted, 
that  the  positive  charge  in  the  petition,  viz.  that  the  slave  was  kept 
at  work  for  the  defendant  is  disproven,  and  the  implied  charge  of 
a  neglect  to  comply  with  the  requisites  of  the  act  cited,  is  not  pre 
sented  as  a  substantial  cause  of  action,  which  the  defendant  was 


278  SLAVERY. 

bound  to  disprove.  We  are  of  opinion  that  the  petition  charges 
the  neglect  of  the  defendant  in  a  manner  sufficiently  positive  to 
"  put  him  on  his  defence.  The  act  requires  a  person  who  takes  up 
a  runaway  slave  to  carry  him  before  a  magistrate,  but  it  does  not 
fix  any  particular  time  for  doing  so.  The  taker  up  cannot  be  ex 
pected  instantly  to  abandon  his  own  work,  and  go,  accompanied  by 
his  own  negroes,  to  the  justice,  A  reasonable  time  must  be  allow 
ed  for  that  purpose.  And  this  is  a  matter  of  fact.  If  he  has  busi 
ness  of  his  own  pressing  on  him,  which  does  not  admit  of  a  delay, 
he  may  secure  the  runaway  during  a  reasonable  time.  If  the  own 
er  resides  nearer  to  him  than  the  justice,  he  may  well  send  him 
word  to  come  and  take  his  slave  away.  If  the  latter  escape  in  the 
mean  while,  it  is  not  clear  that  the  taker  up  is  to  bear  the  loss. — 
Nemimi  debet  suum  officium  esse  noceosum.  Taking  up  a  runaway 
slave  is  generally  a  kindly  office.  No  private  man  is  bound  to 
undertake  it. 

It  is  true,  the  law  provides  a  compensation,  but  few  persons  de 
mand  or  accept  it,  and  the  defendant  appears  to  be  one  of  those. 
The  law  of  this  case  is  pretty  plain ;  and  the  jury  who  passed  on 
it  had  but  two  facts  to  consider  :  Did  the  defendant  neglect  to 
carry  the  slave  to  a  magistrate  for  too  long  a  time  1  Did  not  the 
plaintiff  approve  of  the  slave  being  kept  as  he  was  1  They  have 
found  for  the  defendant  generally ;  and  we  are  far  from  seeing 
that  they  erred.  This  is  certainly  a  very  hard  action,  and  every 
allowance  must  be  made  in  favor  of  the  defendant,  who  acted  with 
the  best  intentions,  desirous  of  avoiding  any  useless  expense  to  the 
plaintiff,  and  who  treated  the  slave  in  the  very  manner  in  which 
plaintiff  desired  he  might  be  treated,  if  the  defendant  did  not  pur 
chase  him.  The  jury,  who  knew  the  situation  of  the  defendant, 
his  distance  from  the  next  magistrate,  and  his  ability  to  spare  hands 
to  guard  the  slave  on  the  way,  have  said  the  plaintiff  ought  not  to 
recover. 

The  plaintiff,  in  two  letters,  before  and  after  he  heard  of  the 
escape  of  the  slave,  does  not  appear  to  have  disapproved — did  not 
complain  of  the  conduct  of  the  defendant.  On  the  contrary,  he 
used  expressions  therein,  which  might  be  construed  into  an  appro 
bation  of  his  conduct ;  and  if  the  verdict  was  grounded  on  a  belief 
that  it  was  approved  and  ratified  by  the  plaintiff,  we  cannot  say 
that  the  jury  erred.  Upon  the  whole,  the  verdict  and  judgment 
appear  to  us  correct. 


OF  THE  EMANCIPATION  OF  SLAVES.  279 

8. 
SKINNER  v.  FLEET.     Aug.  T.  1817.     14  John's.  Rep.  263. 

The  court  held,  that  where  a  slave  ran  away  from  his  master, 
who  was  an  inhabitant  of  the  state  of  Connecticut,  and  came  to 
New- York,  where  he  was  taken  and  sold  by  his  master  to  a  person 
in  New-York,  but  whose  residence  was  in  Connecticut,  and  who  was 
temporarily  engaged  in  business  in  the  city  of  New-York,  the  sale 
was  valid  under  the  act  of  1801.  1  K.  &  R.  614. ;  and  the  slave 
was  not  entitled  to  his  freedom.  The  case  is  not  within  the  mis 
chief  intended  to  be  guarded  against  by  the  statute. 

9. 
HOGG  v,  KELLER  et  al..   Nov.  T.  1819.  2  Nott  and  M'Cord,  113. 

Trespass  for  whipping  the  plaintiff's  negro.    Defendants,  to  jus-  The  pass 
tify  under  the  patrol  law,  that  the  negro's  pass  did  not  state  where  "tate  where 
he  was  going.     Verdict  for  defendant.  Jjje  *lav.et  !* 

Per  Cur.     Colcock,  J.     The  law  does  not  require  a  master  to  sufficient  if 

i  i     11  i  *t    express 

state,  in  every  pass,  to  what  place  the  negro  shall  be  permitted  to  a  leave  of 

go.   It  is  sufficient  if  it  express  a  leave  of  absence  for  such  a  time  ; 

2  Brev.  231.     The  defendants,  therefore,  were  guilty  of  a  trespass  time 

on  the  plaintiff's  property,  and  he  is  entitled  to  a  verdict.     New 

trial  granted. 


(XIX.)  OF  THE  EMANCIPATION  OF  SLAVES. 
(A.)  BY  DEED. 
1. 

M'CuTCHEN  et  al  v.  MARSHALL  et  al.     January  T.    1834. 
8  Peter's  Rep.  220. 

Justice  Thompson,  in  speaking  of  the  right  of  owners  to  eman-    £mancipa- 
cipate  their  slaves,  uses  these  words  :   "  As  a  general  proposition,  llon  ^f' 
it  would  seem  a  little  extraordinary   to  contend,  that  the  owner  of  strained  or 
property  is  not  at  liberty  to  renounce  his  right  to  it,  either   abso-  qua 
lutely,  or  in  any  modified  manner  he  may  think  proper.     As  be 
tween  the  owner  and  his  slave,  it  would  require  the  most  explicit 
prohibition  by  law  to  restrain  the  right.     Considerations  of  policy, 
with  respect  to  this  species  of  property,  may  justify  legislative  regu 
lation,  as  to  the  guards  and  checks  under  which  such  manumission 


280  SLAVERY. 

shall  take  place,  especially,  so  as  to  provide  against  the   public's 
becoming  chargeable  for  the  maintenance  of  slaves  so  manumitted. 

2. 

FERGUSON  et  al.  v.  SARAH.     June  T.  1830.     4  J.  J.  Marshall's 

Rep.  103. 

Enoch  Smith,  an  abolitionist,  bought  Sarah,  the  wife  of  negro 
The  owner  Bellj  a  ft.ee  man  of  coior>  and  sold  her  to  Ben,  in  1809,  for  the 
purpose  of  being  emancipated,  and  took  Ben's  notes  at  long  credits 
in  payment.  Smith,  the  vendor,  wished  Ben  to  liberate  his  wife 
without  delay,  as  he  was  becoming  embarrassed,  and  he  might  be 
eventually  unable  to  do  it  in  consequence  of  the  claims  of  his  credi 
tors.  A  deed  was  prepared  by  Smith  in  the  year  1813,  ;  nd  exe 
cuted  by  Ben,  in  which  he  emancipated  his  wife  and  her  children. 
Ben  had  not  paid  Smith  the  amount  of  the  notes  given  for  Sarah. 
S-.nith  lived  some  years  after,  and  always  recognized  Sarah  and 
her  children  as  free  persons. 

Ben  died  intestate  in  1818,  and  Smith  in  1825.  Ferguson  was 
his  executor,  and  was  also  appointed  administrator  of  Ben,  and 
took  Sarah  and  her  children,  and  was  about  selling  them  for  the 
purpose  of  satisfying  the  debt  due  from  Ben  to  Smith,  for  tl.e  price 
of  Sarah.  A  bill  was  filed,  alleging  these  facts,  and  an  injunction 
awarded  restraining  the  sale.  The  answer  alleges,  that  the  rights 
of  the  testator,  as  creditor,  were  not  impaired  by  his  agency  in 
effecting  the  emancipation.  The  circuit  court  perpetuated  the 

injunction. 

Per  Cur.  Robinson,  Ch.  J.  Ferguson,  as  administrator  of  Ben, 
had  no  interest  in  the  plaintiffs,  nor  any  right  to  control  them. 
Pre-existing  creditors  of  Ben,  who  did  not  assent  to  the  deed  of 
emancipation,  might  disregard  it  so  far  as  their  just  claims  might 
be  affected  by  it.  For  the  maxim,  that  a  man  must  be  just  before 
he  is  generous,  was  applied  to  the  emancipator  by  the  act  of  as 
sembly  of  1798,  (2  Dig.  1155.,)  whereby  the  rights  of  creditors, 
and  all  others,  except  "the  heirs  or  legal  representatives"  of  the 
emancipator  are  saved. 

But  after  manumission,  the  person  so  liberated  is  free  as  against 
the  emancipator,  and  the  world  besides ;  excepting  only  bonafide 
creditors,  or  some  other  person  who  had  a  better  right  to  the  slave 
than  the  person  had,  who  attempted  the  liberation;  and  as  to  such 
creditor,  his  right  does  not  nullify  the  act  of  emancipation,  nor 


OF  THE  EMANCIPATION  OF  SLAVES.  28 

otherwise  affect  it,  farther  than  as  a  lien  for  the  ultimate  security 
of  the  debt. 

The  person  emancipated  is  no  part  of  the  assets  in  the  hands  of 
the  personal  representatives  of  the  emancipator.  The  emancipa 
tion  being  effectual  against  the  emancipator,  must  be  equally  so 
against  his  heir  and  personal  representatives.  And  the  act  of  as 
sembly  expressly  declares,  that  it  shall  be  equally  so  against  them 
all. 

As  administrator  of  Ben,  Ferguson  had  no  right  whatever  to  the 
custody  of  the  defendants  in  error,  nor  had  he  as  executor  of  Smith ; 

The  act  of  1798  would  have  saved  the  right  of  E.  Smith,  as  the 
creditor  of  Ben.  But  it  would  have  saved  it,  just  as  the  common 
law  and  the  statutes  for  the  prevention  of  gifts,  grants,  or  devises 
ifl^fraud  of  creditors  will  protect  their  rights  from  the  fraud  or  pre 
mature  generosity  of  their  creditors.  The  law  will  not  allow  the 
honest  creditor  to  be  defrauded  of  his  just  rights  by  the  collusive 
or  voluntary  alienation  by  the  debtor  of  his  property.  But  if  the 
creditor  be  privy  to  the  alienation,  and  assent  to  it,  it  is  not  fraudulent, 
nor  inoperative  as  to  him.  Volenti  nonjit  injuria.  In  this  case  the 
testator  was  not  only  privy  to  the  emancipation,  but  urged  and  as 
sisted  in  effecting  it.  Decree  perpetuating  the  injunction  affirmed. 

3 

TRUDEAU'S  EXR.  v.  ROBINETTE.     Jan.  T.  1817.     4  Martin's 
Louisiana  Rep.  577. 

Per   Cur.     Martin,  J.     The  plaintiff  claims  the  defendant  as  a  A  deed  of 

emanci  pa- 
slave  ;  stating  her  to  be  a  mulatto  woman  born  from  a  negro  woman,  tion  of  a 

the  slave  of  his  testator;  avers  that  she  pretends  to  be  free,  and  is  derthe  age 
about  to  sail  for  the  island  of  Cuba.  Her  answer  denies  every 
fact  in  the  petition.  Judgment  has  been  given  for  her  in  the  dis 
trict  court,  and  the  plaintiff  has  appealed.  The  case  comes  upon 
a  statement  of  facts,  and  a  bill  of  exceptions.  The  statement  ap 
prises  us,  that  at  the  trial,  before  a  jury,  the  plaintiff  introduced  a 
bill  of  sale  from  his  testator  to  Gardette,  and  a  reconveyance  from 
Gardette :  the  first,  of  March  20th,  1809,  the  other  of  April  17th, 
of  the  same  year.  The  defendant  first  introduced  a  letter  of  the 
plaintiff's  testator  of  October  llth,  1808,  containing  the  follow 
ing  expressions:  "Robinette,  a  child  of  my  house,  having  always 
acted  in  a  manner  different  from  that  of  girls  of  her  color,  I  am 
happy  that  she  finds  the  opportunity  of  securing  her  happiness, 
36 


282  SLAVERY. 

especially  at  the  eve  of  the  day  when  her  young  mistress  is  under 
the  necessity  of  calling  her  back  near  her,  or  of  replacing  her." 
.    The  testator  then  offers  her  to  Gardette  for  1000  dollars. 

2.  A  bill  of  sale  of  Robinette  from  James  Mather,  styling  himself 
attorney  in  fact  of  George  Mather  and  Aurone,  the  wife  of  said 
George,  one  of  the  testator's  daughters,  of  July  1810,  to  A.  Abat. 

3.  Another,  from  the   latter  to  A.  D.  Tureau,  of  the  22d  of 
December,  of  the  same  year. 

4.  One  from  the  latter  to  the  defendant's  mother,  now,  and  then, 
a  free  negro  woman,  of  Sept.  10,  1811. 

5.  A  deed   of  emancipation   of  the  defendant,  dated  July  21, 
1812. 

6.  The   record  of  a  suit,  instituted  by  George  Mather  and  wife 
against  Abat,  for  a  part  of  the  price  of  the  defendant.     Gardette, 
a  witness  introduced  by  the  defendant,  deposed,  that  he  had  known 
her  for  ten  years  past;   that  she  is  the  person  he  bought  from  the 
plaintiff  *s    testator ;    that    she   always  passed    as    the  plaintiff's 
testator's   slave,  and  he   hired  her  as  such  ;   that  he   believes  the 
testator  knew    of  the  sale  of  the  defendant  by  Mather  to  Abat, 
because  he  was  told  so  by  the  family,  and  the  bargain  was  made 
at  the  house  of  one  of  the  testator's  daughters. 

Lozane,  another  witness,  introduced  also  by  the  defendant,  de 
posed,  that  the  defendant  had  been  in  the  enjoyment  of  her  free 
dom  for  some  years  past ;  that  Gardette,  the  other  witness,  lives 
with  and  has  three  or  four  children  by  her.  The  plan  tiff  proved 
that  he  had  taken  up  and  confined  the  defendant,  but  that  she  was 
liberated  on  a  habeas  corpus. 

To  the  introduction  of  the  deed  of  emancipation,  as  evidence, 
the  plaintiff  objected,  it  appearing  illegal  on  its  face.  The  defend 
ant  was  stated  in  it  to  be  of  the  age  of  twenty-four^  a  fact  which 
was  not  denied,  while  the  law  forbids  the  emancipaton  of  slaves 
under  that  of  thirty.  1807,  18,  sect.  2.  A  bill  of  exceptions  was 
taken  to  the  opinion  of  the  court,  overruling  this  objection  ;  and  in 
sealing  it,  the  judge  stated  his  reasons  as  follows  :  "I  allowed  the 
act  of  emancipation  to  go  to  the  jury  for  what  it  was  worth, 
although  at  the  time  I  considered  it  immaterial  to  the  real  issue  of 
the  case  whether  it  was  legally  executed  or  not.  Trudeau  was 
plaintiff;  and  I  charged  the  jury,  that  if  his  testator  had  parted 
with  his  title  to  the  defendant,  he  had  no  right  lo  recover ;  that 
the  validity  of  the  act  of  emancipation  was  a  question  between  the 


OF  THE  EMANCIPATION  OF  SLAVES.  283 

person  who  made  it,  or  his  creditors,  and  the  defendant,  and  not 
to  be  tried  in  this  cause,  therefore,  not  for  their  consideration. *» 
We  think  the  judge's  view  of  the  question,  atthetime,  which,  oiu  of 
the  hurry  of  a  trial,  he  would  himself  have  considered  erroneous — 
an  incorrect  one.  If  the  evidence  was  immaterial  to  the  issue, 
why  admit  it?  We  are  of  opinion  that  the  document,  had  it  been 
a  legal  one,  would  have  been  most  material,  a  sine  qua  non  piece  of 
evidence.  But  we  think  it  was  illegal,  null,  and  void  ;  the  officer 
who  received  it  having  done  so  in  contempt,  if  he  was  not  igno 
rant,  of  the  law  A  slave,  considered  as  an  object  of  property,  is 
a  thing,  and  as  such,  not  entitled  or  capable  to  resist  the  exer 
cise  of  ownership  on  him  (as  an  actor  in  a  suit,  or  on  a  writ  of 
habeas  corpus,  nor  as  a  defendant)  on  account  of  a  want  of  title 
hi  the  person  who  claims  or  uses  him  as  his  property.  If  he  bring 
suit,  or  be  sued  on  a  claim  of  property  on  him,  the  issue  can  only 
be  liber  vel  non.  If  he  prove  his  freedom,  no  title  can  exist  in  his 
opponent,  till  his  freedom  be  proven  ;  there  is  no  person  to  stand 
in  judgment  with  the  claimant,  who  therefore  could  neither  avail 
himself  of,  nor  be  concluded  by,  the  judgment.  Civil  Code,  art. 
19.;  Black  Code,  1816,  33.  Sect.  16.  Here  the  defendant  clearly 
appears  to  have  been  a  slave,  and  there  is  no  evidence  of  emanci- 
pation.  If  the  plantiff  has  parted  with  his  title  to  a  known  person, 
who  is  unwilling  to  incur  the  risk  and  expense  of  a  trial,  and  does 
not  insist  on  his  right,  the  slave  has  no  capacity  to  resist.  If  the 
owner  be  unknown,  it  is  as  if  he  did  not  exist.  If  he  be  known, 
and  absent,  the  court  below  might  have  appointed  a  person  to  inter 
fere  in  his  behalf.  Owners  ouglit  not  to  be  subjected  to  support 
or  exhibit  their  titles,  contradictorily  with  their  slaves.  Whenever 
the  issue  liber  vel  non  is  found  in  their  favor,  the  court  must  give 
judgment  for  them,  without  any  inquiry  into  the  title.  As  this  in- 
quiry  would  not  avail  them  against  other  claimants,  it  would  be 
wrong  to  prejudge,  by  trying  the  claim,  the  rights  of  others. 

It  is,  therefore,  ordered,  adjudged,  and  decreed,  that  the  judg 
ment  of  the  district  court  be  annulled,  avoided,  and  reversed,  and 
that  the  plaintiff  do  recover  the  defendant  Robinette,  and  that  she 
return  to  him  as  his  slaye. 


284  SLAVERY. 

4. 
SAWNEY  v.  CARTER.     March  T.  1828.     6  Rand's  Rep.  173. 


And  the  ^er  Coulter,  J.  It  has  been  decided  by  this  court,  that  a  deed 
deed  must  of  emancipation,  not  recorded  in  the  proper  court,  but  in  some 
ed  in  the  other,  gives  no  title  to  freedom  until  properly  recorded.  Givens  v. 
court"  Mann»  6  Munf'  ReP-  191-;  Lewis  v.  Fullerton,  1  Rand's  Rep.  15. 

The  same  principle  was  decided  in  Donaldson  v.  Jade,  Bib  b'sRep. 

57.     But  the  law  is  now  changed  in  Kentucky  by  the  act  of  1800. 

2  Litt.  387. 

5. 

WINNEY  v.  CARTWRIGHT.      Spring   T.    1821.      3   Marshall's 

Rep.  493. 

Butadiffe-       Trespass,  assault  and  battery.     The  question  turned  upon  the 

rent  rule      issue  of  freedom  or  slavery  of  the  appellant,     it  appeared  a  Mrs. 

Kentucky.    Reed  had  owned  him,  and  had  executed  a  deed  of  manumission, 

and  acknowledged  it  to  be  her  act  and  deed  before  two  persons. 

The  court  rejected  this  evidence. 

Per  Cur.  Mills,  J.  By  the  act  of  1800,  2  Litt.  Rep.  387.,  it 
is  enacted,  "  that  every  person  of  the  age  of  18  years,  being  pos 
sessed  of,  or  having  a  right  to,  any  slave  or  slaves,  may,  by  his  or 
her  last  will  and  testament,  or  by  an  instrument  of  writing,  emanci 
pate  such  slave  or  slaves."  By  the  express  words  of  this  act  the 
power  is  granted  to  emancipate,  by  a  will,  or  instrument  of  writing, 
so  that,  whenever  the  instrument  of  writing  is  made  by  that  person, 
the  emancipation  is  complete.  The  seal  is  dispensed  with.  If  the 
act  of  emancipation  goes  so  far  as  the  completion  of  what  may  be 
termed  an  instrument  of  writing,  that  is,  a  writing  declaring  its  ob 
ject,  and  signed  by  the  party,  the  appendage  of  a  seal  is  not  neces 
sary.  The  proof  of  the  acknowledgment  is  dispensed  with,  so 
far  as  it  constitutes  an  essential  ingredient  in  the  manumission. 
Since  the  passage  of  the  act,  we  conceive  that  a  writing  emanci 
pating  a  slave  is  placed  on  the  footing  of  a  will  after  the  death  of 
the  testator,  or  a  deed  before  its  enrolment,  and  after  the  execution 
and  delivery.  It  is  valid,'  and  passes  the  estate. 


OF  THE  EMANCIPATION  OF  SLAVES.  285 

6. 

JULIEN  v.  LANGLISH.  Jan.  T.  1821.  9  Martin's  Louisiana  Rep. 

205, 

Per  Cur.  Martin,  J.  The  petition  states,  that  Peter  Langlish,  j£  f^>m 
now  deceased,  being1  in  his  lifetime  the  owner  of  the  plaintiff,  a  slave,  un- 
a  black  man,  emancipated  him  on  the  24th  of  October,  1814,  by  a 
notarial  act,  after  having  fulfilled  all  the  formalities  which  the  law 
requires.  The  act  has  a  suspensive  clause,  by  which  a  condition  his  master 

as  before, 

is  annexed  to  the  emancipation  of  the  plaintiff,  who  was  thereby  till  his 
bound  to  continue  to  serve  the  said  Peter,  as  before,  till  his,  the 
said  Peter's  death,  when  the  plaintiff  was  fully,  and  without  further 
restriction,  to  enjoy  his  freedom.  The  plaintiff  alleges,  that  in  or-  attempt  to 
der  to  comply  with  this  condition,  he  ever  since,  gratefully  and  hTmto  ac- 
exactly  as  before,  served  the  said  Peter,  and  regularly  paid  him 


twenty  dollars  per  month,  in  conformity  with  an  agreement  on  that  compensa- 

subject  made  between  them,  and  rendered  him  other  services,  when  Services,he 

requested,  till  the  23d  of  April,  1818.    In  the  course  of  which  year  taa™othis°b 

the  said  Peter  instituted  a  suit  against  him,  and  one  B.  Schons,  in  freedom  af- 

ter  the  mas- 

the  parish  court,  to  have  the  aforesaid   deed  of  emancipation  an-  ter's  death, 

nulled  ;  in  which  suit,  the  said  Peter  finally  failed.   5  Martin's  Rep. 

405.     The  judgment  of  the  supreme  court  thereon  pronounced, 

on  the  23d  of  March,  1818,  had   scarcely  become   final,    when, 

on  the  8th  day  of  the  following  month,  the  said  Peter  executed 

what  is  called  a  deed  of  revocation  of  this  deed  of  emancipation, 

before  a  notary,  and  on  the  23d,  the  plaintiff  was,  through  the  agen 

cy  of  several  ill-disposed  persons,  who  availing  themselves  of  the 

old  age  and  infirmities  of  the  said  Peter,  had  prevailed  on  him  to 

execute  the  deed  of  revocation,  arrested,  and  deprived  of  every  ar 

ticle  of  property,  even  of  his  clothes,  dragged  to  jail  and  inhuman 

ly  whipt  :  whereupon,  in  order  to  prevent  the  recurrence  of  such 

abuse,  he  resorted  to  the  authority  of  the  law,  and  instituted  a  suit 

against  the  said  Peter,  which  he  was  afterwards  advised  to,  and  did 

discontinue.  The  petition  further  charges,  that  the  said  Peter,  on  the 

9th  of  December  following,  instituted  the  present  defendant  his 

heir  ;  and  he  now,  the  said  Peter  having  since  died,  wrongfully 

claims  and  detains  the  plaintiff  as  a  part  of  the  testator's  estate. 

The  answer  states,  that  the  plaintiff  is,  and  has  been  a  slave,  and  is 

the  property  of  the  defendant  ;  that  the  pretended  deed  of  eman 

cipation   is   null   and  void  ;  that,  admitting   its   legality,  it  cannot 

avail  the  defendant,  being  a  donatio  mortis  causa,  and  having  been 


286  SLAVERY. 

revoked.  The  general  issue  is  pleaded.  The  district  court  gave 
judgment  for  the  plaintiff,  being  of  opinion  that  "  the  act  of  eman- 
•  cipation  was  executed  in  due  form  of  law,  and  the  plaintiff  acquired 
by  it  an  absolute  and  indefeasible  right  to  his  freedom,  as  the  per 
son  therein  mentioned  ;  and  between  the  execution  of  the  act  and 
the  death  of  said  Peter,  the  latter  had  the  same  rule  and  authority 
over  the  plaintiff  as  he  had  before  ;  but  the  right  of  freedom,  hav 
ing  once  been  acquired,  could  not  afterwards  be  altered  or  forfeit 
ed  by  any  act  of  the  plaintiff,  or  his  master,  because  it  is  unaliena- 
ble."  The  defendant  appealed.  The  documents  which  come  up 
with  the  record,  are  the  acts  of  emancipation  and  revocation ;  the 
proceeding  in  the  suit  brought  by  Peter  Langlish,  to  have  the  first 
act  annulled,  and  in  the  suit  brought  against  him  by  the  present 
plaintiff,  referred  to  in  the  petition. 

The  deed  of  emancipation  purports,  that  Peter  Langlish,  "  by 
these  presents,  gives  freedom  to  his  negro  slave,  named  Julien,  46 
years  of  age,  gratuitously,  and  to  remunerate  him  for  his  fidelity 
and  former  services,  and  those  he  is  to  render  him  until  his  death ; 
which  freedom  is  given  under  the  express  condition,  that  he  shall 
serve  his  present  master  as  before  till  he  die  ;  after  whose  death  he 
is  to  enjoy  it  fully,  without  any  opposition  or  contradiction  from 
any  person  whatever.  Wherefore,  au  moyeu  de  quoi,  he  divests 
himself,  and  parts  with  all  his  right  of  property  and  actions  on 
the  said  slave  Julien,  in  order  that  he  may  deal,  contract,  sell,  pur 
chase,  make  a  will,  and  enjoy  all  the  privileges  of  a  freeman,  after 
the  grantor's  death." 

Boisgobert  deposed,  that  Peter  Langlish  told  him,  the  plaintiff 
should  never  serve  any  other  master  after  his  death  ;  that  the  plain 
tiff  always  conducted  himself  well,  and  never  ran  away.  It  is  in 
the  deponent's  knowledge,  that  the  plaintiff  continued  to  serve  his 
master  faithfully,  until  he  was  put  in  prison. 

About  ten  years  ago  P.  Langlish  told  this  deponent,  that  the 
plaintiff  worked  in  town,  and  paid  him  eighteen  dollars  per  month. 
The  deponent  then  lived  on  the  Bayou,  and  now  lives  on  the  Bayou 
road.  P.  Langlish  lived  at  the  Metadrie,  about  a  league  and  a 
half  from  town.  The  deponent  has  since  been  frequently  in  the 
neighborhood,  and  seen  the  plaintiff  coming  out  of  his  master's 
plantation  with  vegetables.  A  number  of  other  witnesses  testified 
to  the  same  fact.  The  jailor  deposed,  that  the  plaintiff  was  brought 
to  the  jail  on  the  23d  of  April,  1818,  and  whipt.  This  was  done, 
and  he  was  detained  on  the  verbal  order  of  the  defendant,  by  one 


OF  THE  EMANCIPATION  OF  SLAVES.  287 

Valcour,  who  conducted  the  plaintiff  to  the  jail.  The  latter  re 
mained  there  till  released  by  an  order  of  court,  on  the  23d  of  May 
following. 

Dutillet  saw  the  plaintiff  when  he  was  going  to  jail,  and  asked 
him  what  was  the  matter.  He  replied,  that  his  master,  who  was 
an  old  rogue,  sent  him  to  jail,  and  wanted  to  deprive  him  of  his 
liberty.  Another  witness  deposed  to  the  same  fact.  Beaulieu  de 
posed,  that  he  knew  P.  Langlish  for  twenty-two  years  ;  that  he 
enjoyed  his  mental  faculties  till  his  death. 

The  deed  of  revocation  bears  date  of  the  18th  of  April,  1818. 
P.  Langlish  therein  declares,  in  general  terms,  that  he  has  "just 
and  valid  motives  to  change  his  dispositions,"  and  revokes  and  an 
nuls  the  act  of  emancipation. 

We  are  of  opinion,  that  the  plaintiff  has  not  proved  that  he  ful 
filled  the  condition  on  which  he  was  to  be  free  at  his  master's 
death,  and  it  is  in  proof  that  he  did  not.  He  refused  to  serve  him 
as  a  slave,  and  was  desirous  of  compelling  him  to  accept,  in  lieu 
of  his  services,  a  monthly  compensation  of  eighteen  dollars.  He 
brought  a  suit  for  this  purpose,  which  he  afterwards  discontinued. 
The  testimony  of  Dutillet,  and  the  witness  who  followed  him,  show 
that  he  insisted  on  enjoying  his  freedom  before  the  death  of  his 
master,  since  he  charged  him  with  being  an  old  rogue,  who  was 
seeking  to  deprive  him  of  his  freedom.  It  is,  therefore,  ordered, 
adjudged,  and  decreed,  that  the  judgment  of  the  district  court  be 
annulled,  avoided,  and  reversed,  and  that  there  be  judgment  for 
the  defendant. 

7. 

FISHER'S   NEGROES  v.  DABBS  and  others.       March   T-    1834. 
6  Yerger's  Tennessee  Rep.  119. 

On  the  31st  of  July,   1827,  Peter  Fisher  made  and  published  ^feLn- 
his  last  will  and  testament,  and  therein,  among  other  things,  pro-  cipating 
vided  and  directed  as  follows,  to  wit  :  "  I  give  my  negroes,  all  of  not  valid 
them,  their  freedom,  and  a  right  to  live  on  my  tract  of  land  fifteen  Of  thisdW 
years  ;  also,  there  is  to  be  laid  out  of  my  present  crop,  one  year's  J^terj  h^ut 
support;  there  is  to  be  laid  oft'  a  sufficient  quantity  of  horses,  cows,  communi- 

,  ,   ,,  IT     catedtothe 

hogs  and  farming  utensils  for  them  to  make  a  support  ;  to  be  di-  slave  is  im- 


vided  by  persons  appointed  by  the  court.  If  any  of  my  negroes  {- 
withdraw  from  the  land,  he  has  no  right  any  farther  to  do  any  thing  ^ec"^  to 
with  the  land;  but  his  share  falls  to  the  rest,  until  the  time  allowed  tractor  de- 
them  on  the  land  exj^res  ,  then  all  my  property,  not  disposed  of, 


288  SLAVERY. 

the  state  after  paying  my  debts,  is  to  be  equally  jdivided  between  my  bro- 
ther's  and  sister's  cbildren."  Shortly  after  the  publication  of  this 
will,  the  testator  died,  and  probate  was  bad  of  it  in  the  county 


the  right  court  of  Sumner.  The  persons  appointed.  executors  declining  to" 
perfect;  act,  Jeremiah  Fisber,  one  of  the  devisees  of  the  residuum,'  was  ap- 
therThisas-  P0^nte(^  administrator  with  the  will  annexed,  and  presented.  to  said 
sent  was  court  a  petition  for  the  emancipation  of  said  slaves.  But  the  -pe- 

made 

before  or     tition  not  containing  the  allegations  required  by  law,  or  at  least  re- 
wirTorcon-  quired  by  the  court,   he  declined  proceeding  any  farther  in  the 
tra^  was    matter.     He  subsequently  withdrew  from  the  administration,  filed 
makes  no  'a  petition  praying  for  an  issue,  and  procured  an  issue.  of  -devastavit 
vel  non  to  be  made  ;  and  after  several  trials,   the  issue  was  deter-. 
,     mined  in  favor  of  the  will,  in  the  circuit  court  of  Sumner,  so  far  as 
related  to  the  -personal   property  disposed  of  by  it  ;  and   James 
Dabbs  was   duly  appointed  administrator  with   the  will  annexed. 
James  Dabbs,  it.  is  alleged,  though  urged  by  the  negroes,  and  those 
interested  in  their  behalf,  to  file  a  petition  in  the  county  court  of 
Sumner,  for  the  purpose  of  procuring  their  emancipation,,  refused 
to  dp  so,  upon  the  ground  that  he  was  unwilling  to  sign  the  bonds 
required  by  law.     In  1829,  an  act  was  passed  by  the  legislature  of 
Tennessee,  entitled  "An  act  more  effectually  to  provide  for  eman- 
*       cipation  of  slaves.'-     This  act  provides,  "  That  where  any  person 
shall,  by  his  last  will  and   testament,  have  directed   any  slave 
or  slaves  to  be  set  free,  it  shall  be  the  duty  of  the  executors, 
or  administrators-  with  1th  e   will  annexed,  to  petition  the  county 
court,  accordingly  ;  and  if  the  executor  or  administrator  shall  fail 
or  refuse  to  do  so,  it  shall  be  lawful  for  such  slave  or  slaves  to  file 
a  bill  in  equity  by  their  next  friend  ;  and  upon  its  being  made  sat 
isfactory  to  appear  to  the  court,  that  said  slave\>r  slaves  ought  of 
right  to  be  set  free,  it  shall  be  so  ordered  by  the  court  ;  who  shall 
thereupon  require  bond,  with  good  security,  to  indemnify  the  county 
court  under  the  existing  laws  upon  that  subject.     And  the  chan-. 
cellor,  upon  the  filing  of  any  such  bill,  shall  make  such  interlocu 
tory  orders  as  may  be  deemed   necessary  to  secure  the  rights 
of  the  respective  parties."     After  the  passage  of  the  act  of  1829, 
•  the  bill  of  Levy,  Handy,  and  others,  by  their  next  friend,  Andrew 
Hays,  was  filed.     The  bill  states  the  foregoing  facts,  and  prays 
that  the  complainants  may  be  emancipated  and  declared  free,  and 
for  an  account  of  what  they  may  be  entitled  to  under  the  will. 
Jeremiah  Fisher,  one  of  the  legatees  of  Peter  Fisher,  applied  to 
the  court  to  be  made  a  defendant  to  this  bill,  which  motion  was 


OF  THE  EMANGtB^plON  OF  SLAVES.  289 

refused.  He  therenpori  filed  an  original *bill,  in  the  nature  of  a  • 
cross  bill,  alleging  that  he  had  purchased  from  the  other  legatees 
of  Peter  Fisher,  all  their,  interest  under  the  will ;  which  fact  was 
proved.  He  also  alleged,  that  the  act  of  1829  was  unconstitutional 
and  void  ;  that  the  chancellor  had  no  jurisdiction  to  decree  or  act 
upon  the  matters  stated  in  the  original  bill  of  complainants,  Levey 
and  others.  Alleged,  also,  that  if  the  act  were  constitutional,  and 
the  chancery  court  had  jurisdiction,  that  the  relief  prayed  ought 
not  to  be  granted,  because  the  slaves  had  not  rendered  such  meri 
torious,  services  as  would  entitle  them,  under  the  laws  of  Tennesee, 
4o  be  .set  free.  That  they  were  slaves  of  bad  character,  unwor 
thy  to  be  tolerated  as  free,  and  that  in  fact  they  would  be  a  nui 
sance  to  the  neighborhood  if  they  were  free ;  and  that  it  was  incon 
sistent  with  the  policy  of  the  state  to  emancipate  them,  &c.;  and 
charges,  that  Dabbs  refused  to  file  the  petition  merely  to  give  the 
chancery  court  jurisdiction. 

This  bill,  up'on  motion,  was  consolidated  with  the  bill  filed  by 
the  slaves.  Hays  and  Dabbs  answered  the*  cross  bill,  denying 
most  of  the,  allegatipns  in  it,  to  which  .replications  were  filed. 
Thus  stood  the  cause  when,  in  1831,  the  legislature  passed  the 
following  act,  entitled  "  an  act  to  explain  and  amend  an  act  pass 
ed  Dec.  T.  1829,  ch.  29.,  more  effectually  to  provide  for  the 
emancipation  of  slaves  :  "  "  Be  it  enacted  by  the  general  assem 
bly  of  the  state  of  Tennessee,  That  the  above  recited  act  shall  in 
no  wise  be  so  construed  as  to  extend  to  any  case*  where  any  per 
son  may,  by  their  last  will  and  testament,  have  directed  any  slave 
or  slaves  to  be  set  free  before  the  passage  of  the  above  recited  act, 
which  this  is  intended  to  amend  ;  but  in  all  .such  cases  where  any 
suit  shall  have  been  instituted  in  the  district  chancery  couft,  under 
the  provisions  of  the  act  which  this  is  intended  to  amend,  it  shall 
be  the  duty  of  the  chancellor,  at  the  first  term  of  said  court  after 
the  passage  of  this  act,  to  have  the  same  stricken  from  the  docket ; 
and  it  is  hereby  made  the  duty  of  the  clerk  of  said  court  to  trans 
mit  to  the  clerk  of  the  county  court  where  the  parties  reside,  the 
whole  of  the  records  and  proceedings  in  said  cause,  which  shall 
stand  for  trial  at  the  first  term  of  the  county  court  thereafter, 
under  the  same  rules,  regulations,  and  restrictions,  as  if  the  said 
suit  had  been  originally  instituted  in  said  county  court;  provided, 
however,  that  the  costs  which  shall  or  may  have  accrued,  shall 
abide  the  final  issue  of  the  suit." 

37 


290  SLAVLRY. 

After  the  passage  of  this  act,  to  wit,  at  the terra   of  the 

chancery  court  at  Carthage,   the   counsel  for  Fisher  moved  the 
-     court  to  strike   the  cause  from  the  docket,  pursuant  to  its  pro 
visions.     This  the  chancellor,  Reese,  refused  to  do,  for  the  reasons 
set  forth  in   his  opinion  hereinafter  referred  to.     The  causes  were 
afterwards  tried  by  Chancellor  Cook,  who  refused  to  emancipate 
any  of  the  slaves,  except  one.     The  bill  was  therefore   dismissed, 
as  to  the  residue.     From  which  decree  an  appeal  was  prayed,  and 
granted,  to  this  court.     Upon  the  hearing  of  the  cause  below,  it 
was  proposed  by  the  complainants  in  the   original  bill,   through 
their  counsel,  that  they  were  willing  to  accept  their  freedom  upon 
any  terms  the  court  thought  proper  to  impose.     That  they  would 
leave  the  state   and  go  to  Liberia.     This  proposition  was  renewed 
in  the  supreme  court.     The  view  taken  by  the  supreme  court  of 
the  right  of  the  complainants  wholly  supercedes  the  necessity  of 
stating  the  evidence  in  relation  to  the  character  of  the  slaves. 

Per  Cur.  Catron,  Ch.  J.  Peter  Fisher  made  his  will  in  1827. 
He  had  several  slaves  who  he  had  devised  should  be  free ;  that 
they  should  have  a  right  to  reside  upon  his  plantation  for  fifteen 
years;  have  laid  off  to  them  horses,  cattle,  and  farming  utensils, 
to  make  the  support  with,  and  a  year's  support  from  the  then  crop, 
*and  ten  dollars  in  money.  The  balance  of  his  property  was 
devised  to  his  brother's  and  sister's  children  as  residuary  legatees. 
The  testator  died,  and  the  will  was  duly  proved  and  recorded. 
The  executors  therein  named  did  not  qualify,  and  James  Dabbs 
was  appointed  administrator  with  the  will  annexed.  He  refused  to 
petition  the  county  court  tohave  the  slaves  emancipated  pursuant  to 
the  will,  because  he  would  not  involve  himself  by  giving  bond  and 
security  that  they  would  not  be  a  county  charge.  Thus  the  mat 
ter  stood,  until  the  act  of  1829,  ch.  29.,  was  passed,  authorizing 
the  slaves  to  apply  to  the  chancery  court  by  their  next  friend  by 
bill,  and  giving  that  court  jurisdiction  to  decree  emancipation. 
The  bill  was  filed,  and  proceeded  in,  to  a  decree  and  appeal. 

In  is  insisted  the  act  of  1829  is  retrospective  and  void  as  against 
the  distributees  and  residuary  legatees  of  Peter  Fisher.  That  they 
by  his  death  took  a  vested  right  in  the  slaves,  and  to  the  property 
devised  to  them  after  their  emancipation,  which  vested  right  the 
act  of  1829  gives  the  chancellor  no  power  to  divest ;  and  that  the 
legislature  having  no  such  power,  could,  of  course,  confer  none  on 
the  chancellor.  If  the  premises  be  true,  the  conclusion  is.  Had 


OF  THE  EMANCIPATION  OF  SLAVES.  291 

the  legislature  the  power  in  1829  to  declare  these  slaves  free  per 
sons  by  the  act  of  assembly  ]     As  between  Peter  Fisher  and  his 
slaves,  his  will,  on  his  death,  was  a  deed  of  emancipation.     Legis 
lation  in  restraint  of  manumission  aside,  and  they  owed  no   per 
sonal  services  to   the   representatives  of  Peter  Fisher  ;  were  as 
free  agents  as  themselves,  and  as  capable  of  enjoying  every  natu 
ral  right.     Being  in  the  enjoyment  of  natural  liberty,  of  course, 
they  had  a  right  to  the  enjoyment  of  the  property  devised  to  them 
by  their  late  master.     The  idea  that  a  will  emancipating  slaves,  or 
deed  of  manumission,  is  void  in  this    state,  is  ill  founded.      It  is 
binding  on  the   representatives  of  the  devisor  in  the  one  case,  and 
the  grantor  in  the  other,  and  communicates  a  right  to  the  slave  ; 
but  it  is  an  imperfect  right,  until  the  state,  the  community  of  which 
such  emancipated   person  is  to  become  a  member,  assents  to  the 
contract  between  the  master  and  the  slave.     It  is  adopting  into  the 
body  politic  a  new  member,  a  vastly  important   measure   in  every 
community,  and  especially  in  ours,  where  the  majority  of  freemen 
OFer  twenty-one   years  of  age,  govern  the  balance  of  the  people, 
together  with  themselves  ;  where  the  free  negro's  vote  at  the  polls, 
is  of  as  high  value  as  that  of  any  man.     Degraded  by  their  color 
and  condition  in  life,  the  free  negroes  are  a  very  dangerous  and 
most  objectionable  population  where  slaves  are  numerous.    There 
fore,  no  slave  can  be  safely  freed  but  with  the  assent  of  the  gov 
ernment  where  the  manumission  takes   place.     But  this  is  a  mere 
matter  of  public  policy,  with  which  the   master  or  the  slave  can 
not  concern.     It  is  an  act  of  sovereignty,  just  as  much  as  natu 
ralizing  the  foreign  subject.     The   highest  act  of  sovereignty  a 
government  can  perform,  is  to  adopt  a  new  member,  with  all  the 
privileges  and  duties  of  citizenship.     To  permit  an  individual  to  do 
this  at  pleasure,  would  be  wholly  inadmissible.      Now  or  when  the 
state  assents  to  the  contract  of  manumission,  whether  before  or 
after  its  execution,  is  beside  the  contract,  has  nothing  to  do  with 
its  obligation  on  the  master  or  the  slave,  and  is  unrestricted  by  the 
constitution.     Was  there  a  general  law  authorizing  all  free  persons 
to  emancipate  their  slaves  at  pleasure,  then  the  assent  of  the  gov 
ernment  would  be   given   in   advance  of  the  act   of  the    master. 
Such  was  the  law  in  effect  and  practice  before  the  passage  of  the 
act  of  1777,  ch.  G.,  to  prevent  domestic  insurrections,  and  for  other 
purposes.     The  act  declared  no  slave  should  thereafter  be  set  free, 
except  for  meritorious  services,  to  be  adjudged  of  and  allowed  by 
the  county  court,  and  license  first  had  and  obtained  thereupon,  &c. 


292  SLAVERY. 

The  county  court  had  conferred  upon  it  the  sovereign  power  to 
give  the  assent  of  the  government  to  the  manumission,  but  was 
restricted  in  giving  assent  to  especial  cases,  where  tbe  slave  had 
performed  some  extraordinary  service.  This,  of  course,  extended 
to  the  great  mass  of  slaves,  and  particularly  to  children,  who  could 
not  have  performed  any  such  service.  To  free  the  mother,  and 
retain  as  slaves  the  children,  often  violated  humanity ;  as  did  the 
giving  freedom  to  the  husband  or  wife,  and  retaining  the  other  in 
slavery.  To  obviate  these,  and  such  like  hardships,  the  act  of 
1801,  ch.  27.,  was  passed.  By  this  act,  the  county  court  is  given 
as  plenary  power  as  the  legislature  itself  possessed,  to  emancipate 
slaves  on  petition  of  the  owner — nine,  or  a  majority  of  the  justices 
being  present,  and  two  thirds  concurring.  The  court  is  to  examine 
the  reasons  set  forth  by  the  petition,  and  if  it  be  of  opinion,  that 
acceding  to  the  same  would  be  consistent  with  the  interest  and 
policy  of  the  state,  the  chairman  shall  report  the  petition  as  granted? 
and  sign  the  same  ;  which  shall  be  filed  of  record.  The  same 
power  and  discretion  is,  by  the  act  of  1329,  ch.  29.,  conferred  on 
the  chancellor.  It  is  argued,  the  chancellor  has  no  discretion,  hy 
the  act  of  1829,  in  cases  coming  within  its  provisions.  We  think 
it  did  not  intend  that  his  powers  and  those  of  the  county  court 
should  differ,  as  either  might  be  applied  to,  to  execute  the  law. 

The  chancellor  was  not  on  this  branch  of  the  proceeding  before 
him,  trying  a  cause  between  the  slaves  of  the  estate  of  Peter  Fisher 
and  his  representatives,  but  he  was  acting  as  the  authorized  deputy 
of  the  state  of  Tennessee  ;  and  in  this  capacity  it  lay  upon  him  to 
adjudge,  whether  it  was  consistent  with  the  interest  and  policy  of 
the  state,  that  the  slaves  who  had  devised  to  them  their  freedom 
by  Peter  Fisher,  should  be  manumitted  in  confirmation  of  the  will. 

He  determined  that  Washington,  one  of  the  slaves  should  be 
freed,  and  that  the  others  should  not  be.  This  was  a  sentence 
from  which  an  appeal  lay  to  this  court.  The  discretion  to  be  ex 
ercised,  was  a  legal  discretion,  requiring  the  chancellor  to  adjudge. 
On  the  appeal,  it  is  made  our  duty  to  give  such  judgment  or  sen 
tence,  as  the  court  below  ought  to  have  given.  It  rests  upon  us  to 
determine  what  is  the  policy  most  for  the  interest  of  the  com 
munity  generally,  and  of  Sumner  county  in  particular,  in  this 
matter.  That  policy  can  best  be  ascertained  from  the  act  of 
1831,  ch.  52.  The  state  has  there  spoken,  and  might  by  that 
act  have  given  her  assent  to  the  bequest  in  Peter  Fisher's  will,  as 
she  has  in  other  similar  cases,  had  she  seen  fit ;  and  she  might  in 
future  give  her  assent  in  this  case,  were  this  court  to  refuse  as  was  in 


OF  THE  EMANCIPATION  OF  SLAVES.  293 

effect  done  in  the  instance  of  David  Beatty's  slaves,  as  will  be  seen 
in  the  cause  of  Hope  v.  Johnson,  2  Yerger's  Rep.  123. 

The  policy  of  the  act  of  1831  is,  not  to  permit  a  free  negro  to 
come  into  the  state  from  abroad  ;  and  secondly,  not  to  permit  a 
slave  freed  by  our  laws,  to  be  manumitted  upon  any  other  condi 
tion  than  that  of  being  forthwith  transported  from  the  state,  to 
which,  by  the  first  section,  he  dare  not  return.  We  hold  this  law 
to  have  been  every  way  binding  on  the  chancellor's  discretion,  and 
that  it  is  so  in  ours.  We  think  it  is  clearly  inconsistent  with  the 
policy  of  the  state,  and  the  interest  of  its  citizens,  to  give  the  assent 
of  the  government  to  the  manumission  of  these  slaves,  upon  any 
terms  short  of  their  immediate  removal  beyond,  not  only  our  juris 
diction,  but  beyond  the  limits  of  the  United  States  of  America- 
The  injustice  of  forcing  our  freed  negroes  on  our  sister  states? 
without  their  consent,  when  we  are  wholly  unwilling  to  be  afflicted 
with  them  ourselves,  is  so  plain  and  direct  a  violation  of  moral  duty, 
as  to  inhibit  this  court  from  taking  such  a  step.  To  treat  our 
neighbors  unjustly  and  cruelly,  and  thereby  make  them  our  ene 
mies,  is  bad  policy,  and  contrary  to  our  interest. 

Would  it  not  be  treating  the  non-slaveholding  states  unjustly,  to 
force  our  freed  negroes  upon  them  without  their  consent  ?  and 
would  it  not  be  treating  the  slave-holding  states  cruelly  1  We  are 
ejecting  this  description  of  population,  fearing  it  will  excite  rebel 
lion  among  the  slaves  ;  or  that  the  slaves  will  be  rendered  immo 
ral  to  a  degree  of  depravity  inconsistent  with  the  safety  and  in 
terest  of  the  white  population.  These  are  fearful  evils.  But  are 
they  not  more  threatening  to  Virginia,  (just  recovering  from  the 
fright  of  a  negro  rebellion,)  to  the  Carolinas,  to  Georgia,  Alabama, 
Mississippi,  and  Louisiana,  than  to  us  1  Compared  with  the  whites, 
most  of  them  have  two  slaves  to  our  one  ;  some  of  them  almost 
ten  to  our  one.  Even  Kentucky  has  a  higher  proportion  than 
Tennessee.  How  can  we  then,  as  honest  men,  thrust  our 
freed  negroes  on  our  nighbors  of  the  South  ?  Suppose  the 
non-slaveholJing  states  north  west  of  the  Ohio  were  willing  to 
receive  our  freed  negroes,  (a  supposition  by  the  way  wholly 
untrue,)  would  it  be  good  policy  in  us  to  locate  them  on  our 
borders,  beside  our  great  rivers,  forming  wretched  free  negro 
colonies,  in  constant  intercourse  with  our  slaves]  They  must 
live  in  neigborhoods  separated  from  the  whites.  Their  condition 
has,  and  will  preclude  intermarriages  and  close  association.  That 
such  a  population  inhabiting  a  country  near  us,  would  become  a 
most  dangerous  receptacle  to  our  runaway  slaves,  and  a  grievous 


294  SLAVERY. 

affliction  to  the  state  where  situated,  as  well  as  to  ourselves,  need 
only  be  stated  to  gain  universal  admission.  The  time  would  soon 
-  come  when  the  attempt  to  seize  on  the  harbored  slaves  would  pro 
duce  war  with  such  a  people,  and  serious  collisions  with  the  state 
within  whose  jurisdiction  they  resided.  This  it  is  our  own  interest 
to  avoid.  All  the  slaveholding  states,  it  is  believed,  as  well  as 
many  of  the  non-slaveholding,  like  ourselves,  have  adopted  the  po 
licy  of  exclusion.  The  consequence  is,  the  freed  negro  cannot 
find  a  home  that  promises  even  safety,  in  the  United  States,  and 
assuredly  none  that  promises  comfort.  We  order  the  present  pe 
titioners  for  freedom  to  be  emancipated  on  the  terms,  that  they  be 
sent  beyond  the  limits  of  the  United  States,  for  additional  reasons. 
The  act  of  1833,  ch.  64.,  to  aid  the  colonization  society,  provides, 
that  the  treasurer  of  Middle  Tennessee  pay  to  the  treasurer  of  the 
society  for  its  use,  ten  dollars  for  each  free  black  person  that  the 
treasurer  of  the  society  shall  certify  has  been  removed  from  the 
state  of  Tennessee  to  the  coast  of  Africa. 

The  foregoing  society  has  formed  a  colony  of  free  blacks  at 
Liberia,  on  the  coast  of  Africa.  The  people  residing  there  are  all 
fiom  the  United  States,  speak  our  language,  pursue  our  habits, 
profess  the  Christian  religion,  are  sober,  industrious,  moral,  and 
contented ;  are  enjoying  a  life  of  comfort  and  of  equality,  which  it  is 
impossible  in  this  country  to  enjoy,  where  the  black  man  is  degra 
ded  by  his  color,  and  sinks  into  vice  and  worthlessness,  from  the 
want  of  motive  to  virtuous  and  elevated  conduct. 

The  black  man  in  these  states  may  have  the  power  of  volition. 
He  may  go  and  come  when  it  pleaseth  him,  without  a  domestic 
master  to  control  the  actions  of  his  person ;  but  to  be  politically 
free,  to  be  the  peer  and  equal  of  the  white  man,  to  enjoy  the 
offices,  trusts,  and  privileges  our  institutions  confer  on  the  white 
man,  is  hopeless  now  and  forever.  The  slave,  who  receives  the 
protection  and  care  of  a  tolerable  master,  holds  a  condition  here 
superior  to  the  negro  who  is  freed  from  domestic  slavery.  He  is 
a  reproach  and  a  by-word  with  the  slave  himself,  who  taunts  his 
fellow  slave  by  telling  him,  "  he  is  as  worthless  as  a  free  negro  !" 
The  consequence  is  inevitable.  The  free  black  man  lives  amongst 
us  without  motive  and  without  hope.  He  seeks  no  avocation,  is 
surrounded  with  necessities,  is  sunk  in  degradation. — crime  can 
sink  him  no  deeper,  and  he  commits  it  of  course.  This  is  not 
only  true  of  the  free  negro  residing  in  the  slaveholding  states  of 
this  union  :  in  the  non-slaveholding  states  the  people  are  less  ao 


OF  THE  EMANCIPATION  OF  SLAVES.  295 

customed  to  the  squalid  and  disgusting  wretchedness  of  the  negro; 
have  less  sympathy  for  him,  earn  their  means  of  subsistence  with 
their  own  hands,  and  are  more  economical  in  parting  with  them, 
than  him  for  whom  the  slave  labors,  of  which  he  is  entitled  to  share 
the  proceeds,  and  of  which  the  free  negro  is  generally  the  partici 
pant,  and  but  too  often  in  the  character  of  the  receiver  of  stolen 
goods.  Nothing  can  be  more  untrue  than  that  the  free  negro  is 
more  respectable  as  a  member  of  society  in  the  non-slaveholding, 
than  the  slaveholding  states.  In  each,  he  is  a  degraded  outcast, 
and  his  fancied  freedom  a  delusion.  With  us,  the  slave  ranks  him 
in  character  and  comfort ;  nor  is  there  a  fair  motive  to  absolve  him 
from  the  duties  incident  to  domestic  slavery,  if  he  is  to  continue 
amongst  us.  Generally,  and  almost  universally,  society  suffers; 
and  the  negro  suffers  by  manumission. 

These  are  some  of  the  reasons  why  we  give  the  assent  of  the  state 
to  the  emancipation  of  these  slaves,  in  accordance  to  Peter  Fish 
er's  will,  upon  the  condition,  and  condition  only,  that  they  be  trans 
ported  to  the  coast  of  Africa.  To  the  course  pursued  in  this  in 
stance,  there  might  be  exceptions  in  other  cases ;  but  they  should 
be  most  rare,  and  grounded  on  reasons  the  most  prominent  and 
conclusive.  This  application  furnishes  none  such.  Bond  and  se 
curity  will  be  given,  partly  in  accordance  with  the  second  section 
of  the  act  of  1831,  ch.  102.,  conditioned,  that  the  freed  persons 
shall  be  transported  to  the  colony  of  Liberia,  on  the  coast  of  Afri 
ca,  and  which  shall  form  part  of  the  judgment  of  this  court.  The 
act  of  1831,  ch.  101.,  in  effect  directed  the  chancery  court  to  dis 
miss  this  cause.  Chancellor  Reese,  in  a  very  lucid  opinion,  treated 
the  act,  and  justly,  as  an  unauthorized  mandate,  unconstitutional 
and  void.  This  court  adopts  that  opinion,  which  is  herewith  filed. 
Decree  affirmed. 

The  following  is  the  opinion  of  Chancellor  Reese,  referred  to  and 
adopted  in  the  foregoing  opinion. 

The  act  of  1829,  ch.  29.,  contains  two  important  features  :  First, 
it  declares  it  to  be  the  duty  of  the  executor,  when  there  is  a  bequest 
of  liberty  to  a  slave,  to  endeavor  to  procure  his  emancipation. 
This  had  before  that  time  been  ruled  to  be  his  duty  by  the  supreme 
court  of  the  state,  in  the  cases  of  M'Cutchen  v.  Price  and  Wife, 
3  Hay  wood's  Rep.  211.,  and  Ann  Hope  v.  Johnson,  2  Yerger's 
Rep.  123.  And,  in  the  second  place,  that  if  the  executor  fail  to 
perform  this  duty,  the  slave,  by  his  next  friend,  may  file  his  bill, 
and  have  his  rights  or  claim  to  liberty  under  the  will  inquired  into 


296  SLAVERY. 

and  determined.  These  decisions,  and  this  act  of  assembly  prove, 
that  the  rigor  of  former  opinions  on  the  subject  of  slavery  had, 
'  whether  properly  or  otherwise,  not  a  little  relented.  The  act  re 
cognizes  the  bequest  of  freedom  as  a  valuable  right  to  the  slave 
himself,  to  be  prosecuted  by  him,  under  some  circumstances,  in 
the  courts  of  the  country.  After  the  passage  of  this  act  of  assem 
bly,  the  slaves  in  question,  by  Andrew  Hays,  Esq.  of  David 
son,  filed  their  bill  in  this  court,  the  administration  with  the  will 
annexed,  continued  to  refuse  any  application  on  his  part  in  their 
behalf  to  the  county  court  of  Sumner  ;  and  in  their  bill  they  make 
James  Dabbs,  the  said  administrator,  a  party  defendant,  and  allege 
the  material  facts  herein  before  stated  ;  pray,  that  the}  may  be 
emancipated  ;  and  also  pray,  that  an  account  may  be  taken  of 
the  personal  property  bequeathed  to  them  by  the  will,  and  of  their 
hire  since  the  death  of  the  testator. 

Dabbs  filed  his  answer  ;  admits  his  refusal  to  petition  the  county 
court  of  Sumner  on  behalf  of  complainants  ;  expresses  his  wil 
lingness,  and  even  anxiety,  that  the  will  of  the  testator  on  the  mat 
ter  should  be  carried  into  effect,  and  exhibits  an  account  of  the 
hire  of  the  negroes.  Jeremiah  Fisher,  who  claims  to  have  pur 
chased  the  interest  of  the  other  devisees  of  Peter  Fisher,  thereupon 
filed  his  cross  bill,  making  Hays  and  Dabbs  party  defendants,  and 
alleging  collusion  between  them  ;  and  charging,  that  the  refusal 
of  Dabbs  to  apply  to  the  county  court  of  Sumner,  on  behalf  of  the 
complainants  was  with  a  view  to  give  this  court  jurisdiction  ;  and 
also  praying  an  account  against  Dabbs  as  administrator.  Hays 
and  Dabbs  severally  answer,  and  deny  the  above  allegations. 

On  the  application  of  Fisher  at  the  July  term  of  this  court,  this 
cross  bill  was  consolidated  with  the  other  case.  By  a  previous 
order  of  this  court,  pursuant  to  the  provisions  of  the  act  of  1829, 
ch.  29.,  the  complainants  were  put  into  the  custody  of  the  clerk 
and  master  of  this  court  ;  an  account  was  ordered  between  the 
parties,  and  a  report  made,  which  has  been  confirmed.  Replica 
tions  were  filled,  and  the  cause  in  a  state  forbearing  at  the  present 
term  of  this  court. 

Under  these  circumstances,  the  following  act  of  assembly,  passed 
November  28th,  1831,  is  produced  to  the  court,  entitled,  "An 
act  to  explain  and  amend  an  act  passed  Dec.  7th,  1829,  ch.  29., 
more  effectually  to  provide  for  the  emancipation  of  slaves."  This 
act  provides  tjiat  "  the  above  recited  act  shall  in  no  wise  be  ao 


OF  THE  EMANCIPATION  OF  SLAVES.  297 

construed  as  to  extend  to  any  case  where  any  person  may,  by  their 
last  will  and  testament,  have  directed  any  slave  or  slaves  to  be  set 
free,  before  the  passage  of  the  above-recited  act,  which  this  is  in 
tended  to  amend  ;  but  in  all  such  cases,  where  any  suit  shall  have 
been  instituted  in  the  district  chancery  court,  under  the  provisions 
of  the  act  which  this  is  intended  to  amend,  it  shall  be  the  duty  of 
the  chancellor,  at  the  first  term  of  the  court  after  the  passage  of 
this  act,  to  have  the  same  stricken  from  the  docket ;  and  it  is  here 
by  made  the  duty  of  the  clerk  of  said  court,  to  transmit  to  the  clerk 
of  the  county  court  where  the  parties  reside,  the  whole  of  the  re 
cord  and  proceedings  in  said  cause,  which  shall  stand  for  trial  at 
the  first  term  of  the  county  court  thereafter,  under  the  same  rules 
regulations,  and  restrictions,  as  if  the  said  suit  had  been  originally 
instituted  in  said  county  court :  provided,  however,  that  the  costs 
which  shall  or  may  have  accrued,  shall  abide  the  final  issue  of  the 
suit." 

Upon  this  act  of  assembly,  the  court  has  been  moved  by  the  so 
licitor  of  Fisher,  that  this  cause,  pursuant  to  its  mandates,  be 
striken  from  the  docket.  And  the  question  is,  shall  this  be  done  ? 
Is  the  respect  and  deference  for  the  legislative  will,  when  distinct 
ly  expressed,  which  is  justly  due  from  this  court,  and  fully  ac 
knowledged  by  it,  to  be  countervailed,  in  the  present  instance,  by 
that  paramount  obligation  which  is  exacted  by  the  fundamental 
law  1  It  is  a  proposition  not  to  be  controverted,  that  not  courtesy 
only,  but  duty  requires  of  courts  of  justice,  in  expounding  legisla-  ., 
live  enactments,  with  reference  to  their  conformity  to  the  consti 
tution,  to  give  them  such  examination  as  will  reconcile  them  to 
gether,  and  not  bring  them  into  conflict,  and  to  be  clearly  satisfied 
that  a  law  is  unconstitutional,  before  they  so  pronounce  it.  There 
is  this  difference,  it  occurs  to  me,  between  the  situation  of  a  le 
gislator  and  a  judge  :  the  former  should  yield  his  support  to  no 
measure  unless  fully  convinced  of  its  conformity  to  the  constitu 
tion  ;  the  latter  should  give  effect  to  all  the  statute  laws  of  the 
state,  when  he  no  more  than  doubts  the  legislative  competency  to 
have  passed  them.  But  the  duty  of  a  judge  is  obvious  and  ac 
knowledged,  to  pronounce  an  act  of  the  legislature  unconstituonal 
when  he  believes  it  to  be  so  ;  and  it  is  the  peculiar  province  of 
the  judicial  department  to  expound  laws  and  pronounce  upon  their 
conformity  with  the  constitutional  will  of  the  people.  The  ques 
tion  recurs,  shall  the  court  strike  the  cause  in  question  from  the 

38 


298  SLAVERY. 

docket  ?  The  legislature  has  said  it  shall,  and  at  the  present  term, 
I  entertain  no  doubt  that  the  act  in  question  was  passed  with  the 
purest  motives,  and  upon  the  fullest  conviction,  perhaps,  of  its  pro 
priety  and  justice.  It  is  pretty  evident,  however,  that  the  legis 
lature  was  not  only  uninformed,  but  probably  misinformed  of  the 
situation  and  matter  of  this  case  ;  of  this  bill  and  cross  bill,  and  of 
the  relation  in  which  the  parties  stand  to  each  other,  and  the  pre 
viously  existing  laws  ;  for  the  clerk  of  this  court  is  ordered  to 
transmit  the  whole  record  and  proceedings  in  the  cause  to  the 
country  court,  and  the  county  court  are  ordered  to  try  the  cause 
so  transmitted,  under  the  same  rules-,  regulations,  and  restrictions, 
which  would  have  governed  them  if  the  cause  had  been  instituted 
there.  The  only  cause  which  could  have  been  instituted  there  by 
law,  would  have  been  a  petition  by  Dabbs,  administrator,  as  plain 
tiff,  in  behalf  of  the  complainant's  freedom. 

But  this  petition  Dabbs  has  not  filed,  and  would  not  file ;  and 
because  of  his  refusal,  he  is  a  defendant  to  this  bill.  But  I  waive 
this  consideration,  as,  also,  the  further  consideration,  that  in  striking 
this  cause  from  the  docket,  I  should  strike  off  matter  properly 
cognizable  in  this  court,  without  reference  to  the  act  of  1829,  and 
meet  the  question  fairly  upon  the  main  point.  The  act  of  1831 
contains  three  propositions  worthy  of  consideration.  That  the  act 
of  1829,  ch.  29.,  ought,  in  no  wise,  to  be  so  construed  as  to  extend 
to  cases  where  a  will  directed  slaves  to  be  set  free  before  the  pas 
sage  of  the  act ;  that,  therefore,  the  court  should  strike  such  causes 
from  the  docket,  and  that  the  clerk  transmit  the  record  to  the 
county  court.  If  the  first  proposition  were  correct,  that  is,  that 
the  proper  construction  of  the  act  of  1829,  does  not  confer  upon 
this  court  jurisdiction  over  a  cause  circumstanced  like  the  present? 
the  substance  of  the  legislative  mandate  would  follow,  and  the 
cause  would,  if  not  literally  stricken  from  the  docket,  be  dismissed  ; 
indeed,  if  such  has  been  the  opinion  of  my  predecessor  and  the 
other  chancellor,  the  orders  which  have  been  made  in  the  cause 
would  not  have  existed. 

It  is  for  the  legislature  to  pass  the  law,  and  for  the  court  to  ex 
pound  it.  They  did  pass  the  law  of  1829,  and  the  court  here  pre 
sent  is  of  opinion,  that  a  proper  construction  of  that  act,  as  applied 
to  the  facts  of  this  case,  gives  to  the  court  cognizance  of  the  cause. 
They  took  cognizance  accordingly,  and  now  we  are  informed  by 
the  act  of  1831,  that  the  former  act  ought  to  be  so  construed,  and 


OF  THE  EMANCIPATION  OF  SLAVES.  299 

should  be  construed  as  in  no  wise  to  apply  to  a  case  like  this.      I 
need  not  argue  to  show  how  little  authoritative  a  conclusion,  a 
legislative  exposition  of  a  former  act,  should  be  considered.     The 
counsel  for  the  motion  are  understood  to  concede  that  legislative 
expositions  are  not  to  be  relied  on,  and  that  the  exposition  in  ques 
tion  is    not  well   founded.     Here,  then,  is  a  case  where  a  right 
deemed  valuable,  and  a   proper  subject  for  litigation,  the  right  to 
freedom  under  a  will  is  brought  into  this  court  in  pursuance  of  the 
law,  and   the   matter  proper  for  the  investigation  of  this  court  is 
pending.  The  facts  and  circumstances  which  fix  the  rights  of  the 
parties,  and  give  the  jurisdiction  of  the  court,  are  past,  or  already 
exist,  when  a  simple  legislative  mandate  comes  to  us  and  says,  such 
a  case  shall  not  be  tried — shall  be  stricken  from  the  docket.     This 
is  the  whole  of  the  matter  ;  for  if  the  legislative  exposition  of  the 
act  of  1829  goes  for  nothing,  there  is  nothing  left  but  the  simple, 
naked,  direct  mandate  of  the  legislature  to  strike  the  cause   from 
the  docket ;  for  the  balance  of  the  law  is  a  mere  direction  to  the 
clerk.     Shall  this  court — can  this  court  obey  the  mandate  1     If  it 
may  in  this  cause,  it  may  in  any — it  may  in  all.     Shall  the  rights 
of  all  the    parties  in  this  cause  to  that  relief,  and  to  that  remedy, 
by  due  course  of  law,  which   their  case  calls  for,  be  disregarded, 
and  this  court  be   closed   against  them  1     For  the  efficacy  of  the 
act  of  1831,  and  the  duty  of  this  court  with  regard  to  it,  cannot 
depend  upon  the  fact  that  a  motion  has  been  made  to  give  it  effect. 
If  that  motion  could  succeed,  the  duty  of  the  court  would   have 
been  the   same  if  all  the   parties  had   been   not  only  willing,  but 
anxious  to  proceed  in  this  court.     The  declaration  of  rights,  sec. 
17.,  provides,  that  all  courts  shall  be  open,  and  "  every  man,  for 
an  injury  done  him  in  his  lands,  goods,  fame,  or  reputation,  shall 
have  remedy  by  due  course  of  law,  and  right  and  justice  adminis 
tered   without  sale,   denial,  or  delay."     This  declaration,  copied 
from  the  great  charter,  is  not  a  collection  of  unmeaning  epithets, 
In  England,  the  reason  of  riveting  this  barrier  around  the  rights 
of  the  subject,  was  well  understood.     Their  sovereign  was  wont 
to  interfere  in  the  administration  of  justice  ;  "  a  remedy  by  due 
course  of  law  "   was  often  refused  under  the  mandate  of  men  in 
power,  and  the  injured  man  denied  justice  ;  they  were  ordered 
sometimes  not  to  proceed  with  particular  causes,  and  justice  was 
delayed  ;   and  the  obtainment  of  their  rights  was  often  burdened 
with  improper  conditions  and  sacrifices,  and  justice  was  sold.     So 
anxious  were  they  to  stop  this  enormous  evil,  that  a  part  of  the 


300  SLAVERY. 

official  oath  of  a  judge  was,  that  he  would  proceed  to  do  right  and 
justice,  notwithstanding  any  letter  or  order  to  him  to  the  contrary. 
This    clause  of  magna  charta — why  is  it  inserted  in  our  bill  of 
rights  1     Was  it  from   apprehensions  of  our  executive  1     We  had 
left  him  no  power.     Whatever  power  is  considered  as  properly 
belonging  to  the  executive  department  elsewhere,  is  by  our  institu 
tions,  conferred  upon  the  legislature.     It  is  the   more  important, 
therefore,  and  so  the  framers  of  our  constitution  decreed,  that  the 
judicial  department  should  be  independent  and  co-ordinate,  and 
that  the  legislature  should  have  no  judicial  power.     Danger  might 
justly  be   apprehended   from  this  quarter.     "  The  judicial  power 
(the  whole  of  it)  shall  be  vested  in  such   superior   and   inferior 
courts  of  law  and  equity,"  £c.     If  the   legislature,  possessing  a 
large  share  of  executive   power,  be  permitted  to  exercise  judicial 
power  also,  or  control  the  action  of  the  judges  within  their  pecu 
liar  sphere,  the  liberty  of  the  citizens,  under   the   government  of 
good  legislators,  would  be  in  imminent  peril,  and  under  bad  ones 
would  be  entirely  destroyed.     The  duties  and  powers  growing  out 
of  the  relation  between  the  legislature  and  the  judicial  department, 
and  the  lines  of  demarcation  between  them,  have  been  the  subject 
of  earnest  and   elaborate   discussion  in  the  courts  of  the  several 
states,  and  particularly  those  of  the  United  States ;  and  in  the  cases 
of  Dartmouth   College,  of  Fletcher  and  Peck,  and  of  Green  and 
Biddle,  and  of  many  others  which   need   not  be  referred  to,  the 
principles  applicable  to  questions  of  this  sort  are  well  settled,  and 
the  only  difficulty  is  to  apply  them  to  the  facts  of  particular  cases. 
A  distinction  between  the  right  and  the  remedy  is  made,  and  ex 
ists.     But  where  the  remedy  has  attached  itself  to  the  right,  and 
is  being  prosecuted  by  "  due  course  of  law,"  to  separate  between 
them,  and  take  away  the  remedy,  is  to  do  violence   to  the  right, 
and  within  the  reason  of  that  provision  of  our  constitution  which 
prohibits  retrospective,  or,  in  other   words,  retroactive  laws  from 
being  passed,  or  laws  impairing  the  obligation  of  contracts. 

By  the  act  of  1829,  all  slaves  in  whose  favor  there  is  a  devise  of 
liberty,  and  where  the  representative  of  the  testator  refuses  to  ap 
ply  to  the  county  court,  they  may  file  a  bill  by  their  next  friend  in 
this  court ;  the  act  of  1831  attempts  to  take  away  this  right  from 
a  portion  of  them,  and  from  that  portion  of  them  where  the  right 
and  remedy  had  attached  by  the  actual  pendency  of  a  suit,  in  a 
"due  course  of  law."  Is  not  this  partial  and  unequal  legislation  ? 
It  is  believed  it  is.  It  would  give  me  much  more  pleasure,  if  duty 


OF  THE  EMANCIPATION  OF  SLAVES.  301 

would  permit,  to  conform  to  the  will  of  the  legislature.  This  feel 
ing  is  inspired  not  only  by  respect  and  courtesy,  but,  perhaps  also, 
by  a  lively  sense  of  the  feeble  and  unsustained  character  of  judi 
cial  power,  which  rests  only  upon  the  moral  feelings — upon  the 
reason  of  the  community.  An  improper  yielding  to  legislative 
enactments,  is  a  danger  more  to  be  apprehended  from  the  judicial 
department,  than  rash  or  uncalled  for  opposition.  The  history  of 
every  age  and  of  every  country,  has,  in  every  page  of  it,  shown 
this  to  be  the  case. 

The  independence  of  the  judiciary  ought  to  be  anxiously  pre 
served  unimpaired  ;  not  on  account  of  the  individuals  who  may 
happen  to  be  judges  ;  they  are  nothing  ;  but  on  account  of  the 
security  of  life,  liberty,  and  property,  to  the  citizen.  I  feel  satis 
fied,  that  I  have  no  sympathies  which  would  have  misled  me  in  this 
matter ;  for  when  permitted  to  indulge  my  feelings  and  opinions 
as  an  individual,  I  find  them  in  strong  and  direct  hostility  to  all 
schemes  for  emancipating  slaves  under  existing  circumstances,  in 
the  bosom  of  our  community. 

Let  the  complainant  in  the  cross  bill  take  nothing  by  his  motion. 

After  the  above  opinion  was  pronounced  the  counsel  for  Fisher 
moved  the  court  to  set  aside  the  decree,  and  to  re-hear  the  cause, 
and  set  forth  his  reasons  in  a  petition  to  re-hear. 

Catron,  Ch.  J.  The  motion  to  set  aside  the  decree  in  the  case 
of  Fisher's  negroes,  was  brought  before  the  court  on  yesterday, 
the  last  business  day  of  the  term.  My  mind  was  too  depressed 
with  recent  over-exertion,  to  take  that  strong  view  of  the  subject, 
its  intricacy  and  importance  demanded  ;  and  I  now  feel  myself 
wanting  in  vigor.  However,  there  is  no  time  left.  The  acts  of 
1829,  ch.  29.,  and  1831,  ch.  101.,  received  little  consideration  by 
this  court  when  the  opinion  on  the  merits  of  the  cause  was  drawn 
up.  The  court  was  satisfied  with,  and  adopted  the  opinion  of  the 
chancellor.  Upon  the  high  intelligence  and  ability  of  that  gentle 
man,  we  felt  safe  in  resting.  Our  own  opinion  is,  however,  now 
anxiously  desired,  on  the  construction  of  the  act  of  1831,  and  the 
party  dissatisfied  is  entitled  to  it. 

By  the  common  law,  the  owner  of  a  slave  might  manumit  him 
at  pleasure.  The  acts  of  1777  and  1801  prohibited  this,  unless 
the  government  assented  to  the  contract  of  manumission.  To 
give  this  assent,  the  county  courts  were  vested  with  authority.  A 
deed  or  will  of  manumission  is  not  void,  but  binds  the  owner  or 
representative  of  the  testator,  as  between  him  and  the  slave ;  it 


302  SLAVERY. 

confers  a  moral  right  to  freedom  upon  the  slave.  Before  the  act 
of  1829,  the  master,  or  his  representative,  the  executor,  was  to  do 
'the  first  act:  petition  the  court  for  the  government's  assent.  The 
slave  had  no  power  \o  cause  his  right  to  be  enforced  by  the  courts 
of  justice.  He  had  to  deal  with  sovereignty  ;  he  could  not  sue 
the  state,  and  compel  her  to  execute  the  contract  with  his  master. 
It  lay  with  her  to  direct  the  manner  in  which  the  remedy  should 
be  enforced.  Bill  of  Rights,  sec.  17.  This  is  a  prerogative  of 
sovereignty,  and  is  independent  of  the  constitution.  Then  came 
the  act  of  1829,  for  more  effectually  emancipating  slaves.  It  pro 
vides,  that  where  any  person  shall,  by  his  last  will,  have  directed 
any  slave  to  be  set  free,  it  shall  be  the  duty  of  the  executor  to  peti 
tion  the  county  court,  as  by  the  previous  laws  prescribed.  And  if 
the  executor  should  fail,  or  refuse,  it  should  be  lawful  for  such  slave 
to  file  his  bill  in  equity  by  his  next  friend  ;  and  upon  its  being  made 
to  appear  to  the  court,  that  said  slave  ought  to  be  free,  the  chan 
cellor  should  so  order  ;  and  hti  is  given  jurisdiction  to  make  all 
necessary  interlocutory  orders  to  secure  the  rights  of  the  respective 
parties. 

Under  this  act,  Fisher's  negroes  filed  their  bill ;  brought  before 
the  court  the  proper  parties ;  were  placed  in  the  hands  of  a  re 
ceiver,  and  the  cause  ready  for  hearing.  Then  was  passed  the  act 
of  1831,  ch.  101.,  professing  to  explain  the  act  of  1829.  It  declares 
the  act  shall,  in  no  wise,  be  construed  to  extend  to  any  case  where 
the  will  was  made  before  its  passage.  To  all  subsequent  cases, 
the  act  of  1829  still  applies,  and  is  in  full  force.  In  other  words, 
the  act  of  1831  attempts  a  repeal  of  the  jurisdiction  of  the  chan 
cellor  in  the  case  of  Fisher's  negroes  ;  and  orders  the  chancellor 
at  the  next  term  to  dismiss  the  cause.  It  next  directs  the  clerk  of 
the  chancery  court,  to  transmit  to  the  clerk  of  the  county  court, 
the  whole  of  the  records  and  proceedings  in  said  cause,  which  shall 
stand  for  trial  at  the  first  term  of  the  county  court.  The  act  de 
clares  that  of  1829  did  not  embrace  such  a  case  as  that  of  Fisher's 
negroes  ;  that  the  chancery  court  had  no  jurisdiction  of  it ;  and  is 
in  effect  a  positive  mandate  sent  to  the  chancellor,  in  the  form  of 
an  act  of  assembly,  "to.strike  the  cause  from  the  docket  of  his 
court,"  because,  by  the  act  of  1829  he  had  no  jurisdiction,  and  had 
misconstrued  the  law.  The  chancellor  had  made  interlocutory 
orders  in  the  cause  ;  he  consolidated  it  with  two  others,  between 
the  administrator  with  Peter  Fishers's  will  annexed,  and  the  prin 
ciple  legatee  of  the  estate.  Nothing  but  a  final  decree  was  want. 


OF  THE  EMANCIPATION  OF  SLAVES.  303 

ing  to  end  the  controversy,  and  settle  the  account  of  the  estate, 
so  intimately  blended  with  the  emancipation  of  the  slaves,  who  were 
also  legatees,  that  it  was  impossible  finally  to  decree,  until  this  was 
done  or  refused.  The  previous  orders  mac*  in  the  causes,  the 
legislature,  by  the  act  of  1831,  attempted  to  reverse,  and  ordered 
directly  the  principal  bill  to  be  dismissed. 

By  the  act  of  1829,  the  chancery  court  had  undoubted  jurisdic 
tion  of  the  cause.  By  article  fifth  of  the  constitution,  the  judicial 
power  is  to  be  vested  in  such  courts  of  law  and  equity  as  the  legis 
lature  may  establish.  It  is  an  independent  power,  and  where  it  has 
jurisdiction,  a  sovereign  power,  just  as  much  as  the  legislature 
itself.  He,  who  has  a  lawful  right,  and  a  legal  remedy  to  enforce 
that,  and  the  jurisdiction  of  a  court  has  attached  upon  it,  is  entitled 
to  judgment.  The  legislature  has  no  power  to  close  the  courts. 
The  courts  shall  be  open,  and  every  man  shall  have  remedy  by 
due  course  of  law.  That  is,  every  man  having  a  legal  right,  and 
an  open  remedy.  Art.  11,  sec.  17,  The  legislature  may  confer 
a  right,  and  give  a  remedy  to  a  slave.  Having  opened  the  courts 
to  him,  he  is  entitled,  independent  of  his  color  or  his  civil  condition, 
to  have  justice  administered  in  the  due  course  of  law,  without  de 
nial  or  delay.  Peter  Fisher's  negroes,  by  his  will,  took  a  right,  a 
common  law  right,  one  binding  on  the  executor,  as  a  trustee  ;  but 
their  remedy  rested  with  him ;  he  might  petition  the  county  court, 
or  not,  at  his  pleasure.  If  he  did,  the  distributees  of  Peter  Fisher 
could  not  complain.  The  case  of  David's  negroes,  2  Yerger's  Rep. 
563.  The  act  of  1829  gave  a  remedy  to  the  slaves  ;  not  as  against 
Peter  Fisher's  representative,  against  him  as  trustee  ;  the  previous 
law  would  have  offered  a  remedy  in  equity  ;  but  the  state  as  a  third 
party  had  to  assent  to  the  manumission. 

The  state  could  not  be  sued  until  a  remedy  was  provided.  The 
act  of  1829  provided  that  remedy,  in  pursuance  of  article  11.  sec, 
17.,  of  our  constitution.  The  imperfect  right  to  emancipation 
conferred  by  Peter  Fisher's  will,  wanted  nothing  but  the  assent  of 
the  state  to  perfect  it ;  and  jurisdiction  was  given  to  the  chancellor 
acting  in  his  judicial  capacity,  according  to  judicial  forms,  at  his 
discretion,  to  manumit  the  complainants,  if  he  thought  it  consistent 
with  the  policy  of  the  state.  Though  one  of  the  widest  known 
discretions,  yet  it  was  a  legal  discretion,  and  one  he  dare  not  refuse 
to  exercise,  either  for  or  against  the  complainants.  On  this  ground 
we  exercise  jurisdiction  on  this  branch  of  the  cause  on  appeal^ 
Had  the  discretion  been  unrestricted,  no  appeal  would  have  lain. 


304  SLAVERY. 

The  legislature  had  no  power  to  dismiss  the  bill,  and  to  close  the 
chancery  courts  against  the  complainants.  This  is  not  denied  hy 
the  argument  of  the  opposite  counsel ;  but  it  is  urged,  that  a  change 
of  jurisdiction,  from  the  chancery  court  to  the  Sumner  county 
court,  was  within  the  power  of  the  legislature.  That  the  legisla 
ture  had  the  power  to  withdraw  the  cause  from  the  chancery  court, 
and  order  that  court  to  send  it  to  the  Sumner  county  court  for 
hearing,  I  think  is  clearly  true,  if  the  county  court  either  had 
theretofore  jurisdiction  to  hear  the  cause,  or  if  the  legislature  then 
conferred  the  jurisdiction.  But  the  county  court  had  no  chancery 
jurisdiction  by  any  previous  law  to  that  of  1831,  and  no  power  to 
finally  hear  the  cause,  in  the  form  it  would  have  been  presented, 
Having  no  cognizance  of  the  subject  matter,  the  act  of  1831  was 
a  naked  mandate  to  the  chancellor  to  turn  the  complainants  out  of 
this  court,  and  there  leave  them,  unless  the  act  conferred  jurisdic 
tion  of  the  cause,  as  a  chancery  cause,  on  the  county  court.  Did 
it  do  so  ?  The  act  tells  us  the  cause  shall  stand  for  hearing  in  the 
county  court  at  the  first  term,  under  the  same  rules,  regulations, 
and  restrictions,  as  if  the  said  suit  had  been  originally  instituted  in 
said  county  court.  The  court  was  to  try  the  cause,  not  according 
to  the  rules  and  restrictions  of  the  chancery  court,  but  according 
to  its  own  rules,  long  in  force  by  the  acts  of  1777  and  1801,  for 
the  emancipation  of  slaves.  That  is,  by  petition,  not  by  the  slave, 
(he  could  not  come  into  the  county  court,  or  sue  there,)  but  the 
master,  or  his  executor,  setting  forth  the  motives  for  the  manumis 
sion  ;  which,  if  approved,  the  court  shall  grant  the  petition,  and 
record  the  evidence  of  the  emancipation.  Had  the  cause  gone  to 
the  county  court,  the  complainants  had  no  right  to  take  a  single 
step  as  actors.  The  court  had  no  right  to  take  a  single  deposition 
on  their  behalf,  or  make  any  order  or  decree  against  James  Dabbs 
or  J.  Fisher,  or  even  to  compel  Baker,  the  receiver  of  the  court 
of  chancery,  who  had  the  complainants  in  possession,  to  deliver 
them  to  a  receiver  of  the  county  court. 

An  attempt  to  decree  the  legacy  left  the  negroes  to  order  an 
account  for  their  hire,  amounting  to  eight  hundred  dollars,  would 
have  been  wholly  beyond  any  powers  of  that  court.  None  such 
are  claimed  for  it.  I  therefore  think,  as  my  three  brother  judges 
have  all  along  thought,  that  the  act  of  1831  was  a  naked  mandate 
to  the  chancellor  to  dismiss  the  bill ;  that  the  act  was  retrospective 
of  the  rights  of  the  complainants,  and  is  void  ;  and  that  the  chan 
cellor  did  not  err  in  hearing  the  cause. 


OF  THE  EMANCIPATION  OF  SLAVES.  305 

8. 

VOLSAIX  et  al  v.  CLOUTIER.      Oct.  T.  1831.     3  Louisiana 

Rep.  170. 

Per  Cur.     Porter,  J      The  plaintiffs  contend,  that  they  are  free,  When  the 


because  their  mother  was  free.     The  proof  of  her  freedom  is  of-  0  a 


fered  in  an  act  made  by  their  grandmother  previous  to  their  birth. 
It  is  dated  on  the  27th  day  of  December,  1797.  She  had  the  pre-  that  she 
ceding  year  purchased  her  daughter,  and  in  this  act  she  declared,  child  free- 
that  from  maternal  love  and  affection  she  thereby  gave  freedom  to  ^mo-"1 
her  daughter  from  the  moment  of  her,  the  donor's  death.  In  other  ment<>fher 

death,  the 

words,  she  made  her  daughter  a  statu  liber.  child  is 

But  the  plaintiffs  insist,  that  this  declaration,  on  the  part  of  the  statu  liber 


mother,  manumitted  the  daughter.    And  in  support  of  their  position 
they  rely  on  the  Roman  Code,  lib.  7.  tit.  6.  no.  9.  of  the 

We   have  examined  the  authority,  and  it  appears  to  us  manu-  which itPbe^ 
mission  did  not  necessarily  result  from  such  a  declaration.     That  fr°e™*s 
it  is  a  presumption  which  the  law  raises  from  the  parent  calling 
the  slave  his  child  in  a  public  instrument ;   and  nothing  in  the  pro 
visions  of  the  Roman  law  prevented  the  father  or  mother  holding 
the  child  in  slavery,  when  either  qualified  the  acknowledgment 
in  the  authentic  act.      The  laws  of  Spain  in  relation  to  father  and 
son  did  not  prevent  their  holding  each   other  as  slaves ;   and  we 
think,  that  as  they  were  permitted  to  hold  either  as  a  slave,  they 
might  hold  him  as  a  statu  liber,  and  make  him  such. 


*  In  some  of  the  states  a  special  legislative  grant  is  requisite  to  a  valid  emancipa 
tion.  This  appears  to  be  the  case  in  Georgia,  South  Carolina,  Alabama,  and  Missis- 
sippi.  See  James'  Dig.  398.  act  of  1820. ;  Prince's  Dig.  456;  act  of  1801;  Toul 
man's  Dig.  632. ;  Missisippi  Rev.  Code  386.  In  North  Carolina  the  right  to  eman 
cipation  is  made  to  depend  upon  meritorious  services  done  by  the  slave,  and  which 
are  to  be  adjudged  of  and  allowed  by  the  county  court.  Haywood's  Manuel,  525. 
529.  And  in  Tennessee,  by  the  act  of  Nov.  1801,  chap.  27.,  the  court  have  power 
to  emancipate  on  a  petition  presented  to  them  for  that  purpose.  In  Kentucky,  Mi- 
souri,  Virginia,  and  Maryland,  this  power  is  not  vested  in  the  legislature  or  the 
courts,  but  may  be  exercised  by  the  master,  under  the  rules  and  regulations  establish 
ed  by  the  statutes  of  those  states.  2  Litt.  &  Swi.  1155. ;  2  Missouri  Laws,  744. ;  3 
Hen.  Stat.  87. ;  1  Rev.  Code  Virginia,  433. ;  Maryland  Laws,  Nov.  1809,  ch.  171, 
and  the  act  1796,  ch.  67. 


39 


306 


SLAVERY. 


A  slave, 
debe°cUf  a 


which  she 
See,  at  the 


the  mean- 
stalviiber, 
drenbom 


while,  are 


9. 

CATIN  v.  D'ORGENOY'S  HEIRS.     June  T.  1820.     8  Martin's 
Louisiana  Rep.  218. 

The  plaintiff  claimed  the  freedom  of  her  children,  under  a  deed 
from  her  former  master,  the  defendant's  ancestor.     They  pleaded 
the  general  issue.     There  was  judgment  for  them,  and  she  appeal 
ed.     The  defendant's  ancestor,  in  the  deed  of  emancipation  pro 
duced  by  the  plaintiff,  says,  "  I  hold,  as  my  slave,  a  Creole  negro 
girl  named  Catin,  aged  18  years,  born  in  my  service  from  the  ne 
gro  woman  Martha,  to  whom  I  gave  her  freedom  according  to  the 
terms  of  the  deed,  which  I  executed  before  the  present  notary,  last 
year,  1801,  and  I  have  offered  to  the  said  Catin  her  freedom,  on 
certain  conditions   (terminas)  which  I   shall  express,  gratuitously 
and  without  interest,  in  consideration  of  the  good  services  of  her 
mother,  the  said  Martha.     In  consideration  whereof,  1  grant  by 
these  presents,  that  I  emancipate  and  liberate  from  all  subjection, 
captivity,  and  servitude,  the  said  negro  Catin,  my  slave,  with  the 
qualification  and  condition,  (calidad  y  condition)  that  she  shall  hold 
and  enjoy  freedom,  (fewer,  disfrutar  y  gozar,)  immediately  after  my 
death.  But  during  my  life  she  is  to  remain  in  my  service  and  power, 
continuing  and  contributing  her  services,  as  she  has  done  to  the  date^ 
of  these  presents.     By  virtue  of  which,  and  immediately  after  my 
death,  and  thenceforward,  she  may  deal,  contract,  sell,  and  purchase, 
appear  in  court,  execute  deeds,  make  a  will,  as  a  free  person,"  &c. 
The  children  were  born  after  the  deed,  but  before  the  death  of  the 
grantor. 

Per  Cur.  Mathews,  J.  The  decision  of  this  case  depends  en 
tirely  on  the  construction  to  be  given  to  the  act  of  emancipation, 
by  which  the  appellant  claims  to  have  been  made  free,  at  the  time 
of  the  birth  of  the  children,  for  whom  she  now  claims  freedom. 
We  are  of  opinion,  that  the  court  below  has  given  a  just  interpre 
tation  to  said  act,  and  was  correct  in  considering  the  mother  to  have 
been  of  that  class  of  persons,  known  to  the  Roman  law,  by  the  ap 
pellation  of  statu  liberi,  and  that  children  born  from  her,  while  in 
such  a  state,  are  not  entitled  to  freedom.  Judgment  affirmed. 


OF  THE  EMANCIPATION  OF  SLAVES.  307 

i 

10. 
HOPKINS  et  al  v.  FLEET.    Aug.    T,   1812.     9  Johns.  Rep.  225. 

The  overseers  of  the  town  of  Oysterbay  gave  a  certificate  in  Settlement 
writing,  "  that  the  bearer  Jordan,  the  slave  of  Hopkins,  appeared  of> 
to  be  under  the  age  of  fifty  years,  and  of  sufficient  ability  to  get 
his  living  ;"  and  at  the  bottom  was  written  :  "we  do  hereby  manu 
mit  the  same."  And  the  certificate  was  signed  by  the  overseers,  but 
not  by  the  executors  of  Hopkins,  to  whom  the  slave  belonged,  and 
t  he  certificate  was  duly  recorded. 

The  court  held,  that  this  certificate,  registered  at  the  request  of 
the  executors  of  Hopkins,  was  conclusive  evidence  to  charge  the 
town  with  the  future  maintenance  of  the  slave,  and  in  the  opinion 
of  the  court,  manumitted  the  slave. 

11. 

BAZZI  v.  ROSE  and  her  child.    May  T.  1820.     8  Martin's  Loui 
siana  Rep.  149. 

Per  Cur.     Martin,  J.      The  petition  states,  that  these  defend 
ants  are  the  plaintiff's  slaves,  and  obtained  a  writ  of  habeas  corpus 
from  the  president  of  the  criminal  court,  on  which  they  were  dis-  if  an  jnfor. 
charged  ;  that  the  proceedings  therein  are  erroneous  in  law  and  in  ^ala£^n~ 
fact.    The  answer  avers  the  freedom  of  the  defendants,  and  there  takes  place 
is  a  plea  of  presumption.   There  was  judgment  for  the  defendants,  promising 
and  the  plaintiff  appealed.  %mZ\ 

There  comes  up  with  the  record,  a  number  of  depositions,  and  gal  formali 

ties,  his 
several  bills  of  exceptions,  no  part  of  which  it  appears  necessary  rights  are 

to  examine.     The  defendants  claim  their  freedom,  under  a  deed  affected?  y 
of  emancipation  from  the  plaintiff.     Liberce.  vel  non,  is  the  only  is- 


sue  which  can  exist  between  the  parties.  If  they  be  slaves,  they  be  observ- 
cannot  contest  the  plaintiff's  title  to  them.  They  have  no  capaci 
ty  to  stand  in  judgment  for  any  other  purpose  than  to  establish  or 
defend  their  claim  to  freedom.  Trudeau's  ex'r  v.  Robinette,  4  Mar 
tin's  Rep.  580.  The  act  of  emancipation  introduced  by  the  defend 
ants,  is  dated  St.  Jago  de  Cuba,  May  24th,  1805,  and  purports, 
that  the  plaintiff  "  desirous  of  acknowledging  the  signal  services 
of  Gertrude,  a  Congo  negro  woman,  aged  44  years,  on  several 
occasions,  gives  freedom  to  her  and  |her  child  Rose,  aged  10| 
years,  to  be  fully  enjoyed  without  any  trouble  ;  promising,  in  due 
time  and  place,  to  comply  with  the  formalities  which  the  law  re 
quires." 


SLAVERY. 

The  parish  court  "  considering  that  the  plaintiff,  by  sending  the 
act  of  freedom,  which  he  had  directed  to  be  passed  in  the  island 
of  Cuba,  in  behalf  of  the  defendants,  in  order  that  it  might  be  de 
posited  here  with  a  notary  public,  to  make  it  valid,  as  well  by  his 
long  silence  thereon  afterwards,  as  by  his  subsequent  conduct  with 
regard  to  the  defendant  Rose,  and  her  free  baptized  children,  un 
til  lately,  when  he  thought  he  had  good  reason  to  complain  of  her, 
had  thereby  completed  and  confirmed  his  act  of  freedom  (which, 
in  the  opinion  of  the  parish  court,   on  the  circumstances  of  this 
cause,  the    favorable   application  of  the  law   must  protect,)  gave 
judgment  for  the  defendants.     In  the  correct  decision  of  this  case, 
it  is  all  important  to  decide,  whether  the  defendant,  Rose,  acquired 
her  freedom  in  St.  Jago  de  Cuba  by  the  execution  of  the  deed  which 
the  plaintiff  has  caused  to  be  recorded  here.     It  is  not  pretended 
that  she  had  any  claim  to  freedom  when  she  left  the  island  of 
Cuba,  exclusively  of  the  contents  of  this  deed.     For,  if  she  arrived 
here  a  slave,  she  must  still  be  considered  as  such,  unless  she  has 
been  emancipated  according  to  the  laws  of  this  state,  and  this  is 
neither  alleged  nor  proven.     The  Partida  4.  22.  1.,  requires,  that 
where  emancipation  takes  place  in  writing,  it  be  done  before  five 
witnesses.     Es  menester  que  quando  lo  afforase  per  carta,  o  ante  sus 
amigos  que  lofuga  ante  cinco  tes  tigos.    Grcgorio  Lopez,  in  his  com 
mentary  on  this  law,  says,  this  solemnity  has  been  held  unnecessa 
ry  ;  but  the  writer  does  not  quote  or  allege  any  law  in  support  of 
the  assertion  ;  and  Lopez  concludes  that  it  is  :  non  allcgat  hgem 
quae  suum  dictum  probet,  unde  servanda  est  ista  lex  quae  vvlt  hoc  esse 
necessarium.     The  grantor,  in  executing  this  deed,  knew  his  right 
was  not  thereby  destroyed,  since  he  promised  to  fulfil  the  formali 
ties,  the  sine  qua  non  which  the  law  required. 

It  therefore  results,  that  the  execution  of  this  writing,  or  deed, 
did  not  render  the  defendant  free.  Nothing  shows  that  any  thing 
did  happen  in  Cuba  by  which  the  defect  of  the  deed  was  cured. 
If  these  defendants  were  slaves  on  their  leaving  Cuba,  they  were 
so  at  their  landing  in  this  state.  Here  the  law  requires  certain 
formalities  for  the  acquisition  of  freedom,  none  of  which  are  pre 
tended  to  have  been  fulfilled.  Is  the  record  of  the  deed,  in  the 
office  of  a  notary,  an  act  under  which  the  defendants  may  claim 
their  freedom  ?  We  think  not.  It  is  contended,  that  the  admission 
of  the  plaintiff,  that  he  executed  the  deed,  makes  full  proof  against 
him,  and  that  the  Spanish  law  requires  the  presence  of  witnesses  to 
protect  the  grantor  against  the  perjury  of  a  single  witness.  The 


OF  THE  EMANCIPATION  OF  SLAVES.  309 

laws  of  most  countries  require  formalities  or  ceremonies  to  attend 
the  execution  of  certain  contracts ;  and  although  these  formalities 
and  ceremonies  generally,  perhaps  universally,  tend  to  secure  a 
stronger  evidence  of  the  contract,  this  is  not  perhaps  the  only  object. 
In  the  case  of  an  emancipation  delante  sus  amigos,  in  the  presence 
of  friends  and  before  five  witnesses,  without  writing,  spoken  of  in 
the  partida  cited,  the  required  presence  of  five  witnesses  might  not 
always  protect  against  the  perjury  of  a  single  witness.  For  the 
emancipation  would  be  proven,  if  he  deposed  it  took  place  before 
him  and  four  witnesses,  dead  since.  The  presence  of  a  magistrate, 
the  attendance  of  an  unusual  number  of  witnesses,  the  affixing  of 
a  seal,  are  all  circumstances  which,  besides  securing  more  evidence, 
are  attended  with  this  particular  advantage  :  they  make  a  strong 
impression  on  the  mind  of  the  party,  excite  reflection  in  him  upon 
the  subject  he  is  engaged  in  ;  they  ordinarily  require  time,  and, 
consequently,  afford  an  interval  for  thought  a»d  awake  apprehen 
sion,  and  are  no  contemptible  guards  against  circumvention,  fraud, 
and  surprise.  1  Hay  wood's  Rep.  203.  Farther,  the  deed  itself  shows, 
that  the  grantor  did  not  intend  to  destroy,  ipso  facto,  his  right  on 
the  defendant,  Rose  ;  he  knew  what  he  then  did  had  no  such 
effect ;  for  he  agreed,  at  a  future  time,  to  comply  with  the  formali 
ties  which  the  law  required.  What  he  did  must  then  be  considered, 
notwithstanding  the  words  in  the  first  part  of  the  deed,  as  a  mani 
festation  of  his  intention  to  free  the  defendant  Rose,  and  her  child, 
at  a  future  day.  His  subsequent  conduct,  till  the  record  of  the 
deed  in  the  notary's  office,  shows  that  such  was  his  apprehension. 
Is  the  case  altered  by  this  record  ?  We  think  not.  If  the  plain 
tiff  held  legally  the  defendants  as  his  slaves  when  they  landed  in 
Louisiana,  they  must  have  remained  so,  unless  emancipated  accord 
ing  to  our  laws  ;  and  this  is  not  pretended  to  have  been  done.  It 
is,  therefore,  ordered,  adjudged,  and  decreed,  that  the  judgment  of 
the  parish  court  be  annulled,  avoided,  and  reversed,  and  that  the 
defendant  Rose,  and  her  child,  be  decreed  to  be  the  slaves  of  the 
plaintiff, 

12. 
In  the  case  of  NEGRO  TOM.    Feb.  T.  1810.    5  John's  Rep.  365. 

Habeas  corpus  to  Adolph  Waldradt,  to  bring  up  Negro  Tom,  A  contract 
whom  he  claimed  as  his  slave.  to  manumit 

It  appeared  that  Adolph  had  purchased  the  slave  of  Johannas  ry. 


310  SLAVERY. 

Waldradt,  who  had  given  Tom  a  certificate  in  writing  that  he 
"  manumits  the  said  negro  slave  Tom,  from  and  after  the  death  of 
him,  the  said  Johannas,  in  spite  of  all  bills  of  sale,  or  last  will  by 
him  thereafter  to  be  made."  Johannas  having  died,  the  slave 
claimed  to  be  free. 

Per  Cur.  We  think  the  negro  is  free  by  reason  of  the  certifi 
cate  of  manumission  given  by  Johannas  Waldradt,  in  his  life  time  ; 
and  he  must  therefore  be  discharged. 

13 

OATFIELD  v.  WARING.  May.  T.  1817.     14  John's  Rep.  188. 

Emancipa-  To  an  action  of  assumpsit  for  supporting  the  defendant's  slave, 
presumed,  he  gave  in  evidence  the  will  of  his  father-in-law,  by  which  he  be 
queathed  the  plaintiff  to  his  three  children.  The  plaintiff,  then,  to 
prove  his  freedom  a  writing  sealed  by  the  children  of  the  testator, 
by  which  they  manumitted  him,  on  condition  that  he  served  them 
three  years,  which  service  was  performed.  The  court  below  ruled, 
that  a  manumission  by  two  of  the  joint  owners  of  the  plaintiff, 
amounted  to  a  destruction  of  the  entire  interest,  and  gave  him  his 
freedom,  especially  where  the  third  joint  owner  has  for  along  time 
suffered  him  to  act  as  a  freeman,  without  a  claim. 

Per  Cur.  Spencer,  J.  The  manumission  of  the  plaintiff  by  two 
or  three  joint  owners  would,  of  itself,  make  him  a  freeman.*  No 
person  can  be  partly  a  slave,  and  partly  free,  or  a  slave  for  one 
third  of  the  time,  and  free  for  two  thirds  ;  he  must  be  one  or  the 
other  entirely.  The  manumission  by  two  may  be  considered  a  de 
struction  of  the  tenancy  in  common,  and  a  conversion  of  the  slave, 
as  it  regards  the  proprietor  of  one  third.  And  suffering  the  plain- 


*  With  respect  to  emancipation,  it  may  be  stated  as  a  principle  without  an  exception, 
that,  as  slaves  are  considered  as  property  upon  which  creditors  have  a  right  to  look 
for  the  payment  of  their  debts  due  by  the  owners  of  slaves,  regard  must  be  had  to  the 
rights  of  the  creditor ;  and  no  emancipation  is  valid  when  those  rights  are  violated. 
By  the  Rev.  Code  of  Virginia,  p.  434.,  any  emancipated  slave  may  be  taken  inexecu 
tion  for  a  debt  contracted  by  the  person  emancipating  the  slave,  if  the  indebtedness 
existed  before  the  act  of  emancipation.  And  in  the  acts  of  some  of  the  states,  an  ex 
press  provision  is  to  be  found  guarding  the  right  of  emancipation,  and  saving  the  rights 
of  creditors.  2  Litt.&  Swi.  1155.  §  27.;  Act  of  1798.;  Mississippi  Rev.  Code,  386.; 
Civil  Code  of  Louisiana,  art.  190.  And  this  protecting  law  in  favor  of  creditors  is  ex 
tended  to  widows,  entitled  to  one  third  of  their  husband's  personal  estate.  1  Virginia 
Rev.  Code,  435.;  Mississippi  Rev.  Code,  386.;  2  Litt.  &  Swi.  1246. 


OF  THE  EMANCIPATION  OF  SLAVES.  311 

tiff  to  act  as  a  freeman  without  any  claim  or  pretence  that  he  was 
a  slave,  until  this  suit  was  brought,  would  authorize  the  inference  of 
manumission  by  the  other  tenant  in  common.  All  presumptions 
in  favor  of  personal  liberty  ought  to  be  made. 

14. 

HAMILTON  v.  CRAGG.    June  T.  1823.    6  Har.  &  Johns.  Rep.  16. ; 
HALL  v.  MULLIN,  5  Har.  &  Johns.  Rep.  190. 

Under  the  statute  of  1796,  ch.  67.  §  13.,  the  court  held,  that  an  An  infant 
infant  unable  to  gain  sufficient  maintenance  and  livelihood,  cannot 
be  manumitted;   nor  can  a  slave  be  set  free   who  is   not  both  ted- 
under  the  age  of  45  years,  and  able  to  work  and  gain  a  sufficient 
maintenance  and  livelihood  at  the  time  the  freedom  is  intended  to 
commence. 

15. 

MOSES  v.  DENIGREE.     Nov.  T.  1828.     6  Rand's  Rep.  561, 

The  Court,  Carr,  J.,  held,  in  this  case  that  a  deed  of  emancipa 
tion  of  the  slave  executed  in  1781,  declaring  the  slave  free  when  he 
should  arrive  at  full  age,  which  would  be  in  1 796,  is  void  by  the 
act  of  1723,  by  which  emancipation  is  prohibited  except  for  meri 
torious  services,  and  by  permission  of  the  governor  and  council  ; 
that  the  case  of  Pleasants  v.  Pleasants,  2  Call's  Rep.  319.,  carried 
the  law  far  enough,  although  it  violated  no  statute.  The  will 
merely  directed,  that  his  slaves  should  have  their  freedom  when 
ever  the  laws  would  permit  it,  and  created  a  trust  to  support  the 
devise.  And  the  court  said,  that  emancipation  by  deed  or  will, 
made  before  May,  1782,  of  a  slave,  even  where  freedom  is  to  take 
effect  at  a  future  time,  is  unlawful  and  void. 


(B)  BY  WILL. 

1. 

MARY  v.  MORRIS,  et  al.  Aug.  T.  1834.  7  Louisiana  Rep.  135. 

The  plaintiff  claimed  freedom  under  the  will  of  one  Marshall,  t 

who  held  her  in  slavery  in  the   state  of  Georgia.     The   testator  contrived" 
died,  and  the  slave  was  taken  by  the  testator's  daughter  to  Loui-  tionofthe 
siana,  and  there  sold  by  the  executors  of  her  husband  after  his  state  is 
decease.  void' 


312  SLAVERY. 

The  defendant  pleaded,  that  the  will  of  Marshall  devising  free 
dom  to  his  slaves  was  void  ;  that  by  the  laws  of  Georgia  a  slave 
could  only  be  set  free  by  a  legislative  act. 

The  district  judge  thought,  that  slaves,  being  passive  in  their 
situation  and  character,  it  was  the  duty  of  the  executor  to  see  the 
will  executed,  which  he  viewed  in  the  light  of  a  contract.  Judg 
ment  for  plaintiff.  Appeal. 

But  the  court  reversed  the  judgment,  and  held,  that  the  be 
quest  in  the  will  being  prohibited  by  the  laws  of  Georgia,  where 
it  was  made,  is  null  and  void;  that  the  bequest  of  liberty  to 
slaves,  which  is  made  in  contravention  of  the  law  of  a  state  enacted 
for  the  security  of  the  public  peace  and  good  order  of  the  com 
munity,  is  absolutely  null  and  void,  and  such  slaves  do  not,  ipso 
facto,  become  free  under  the  will,  or  being  brought  into  this  state 
where  slavery  is  tolerated,  but  in  which  slaves  may  be  manumitted 
by  will.  And  see  Pleasants  v.  Pleasants,  2  Call's  Rep.  319., 
where  a  devise  of  freedom  to  depend  upon  a  subsequent  contin 
gency  (as  where  the  state  should  grant  a  right  to  emancipate)  was 
valid. 

Bo    where 

the  will  is  2. 

declared 

void.  CHASTEEN  v.  FORD.     Spring  T.  1824.    5  Little's  Rep.  268. 

Trespass,  by  Ford,  a  man  of  color,  against  Chasteen,  to  recover 
his  freedom. 

It  appeared,  that  Lewis  Chasteen  made  his  will,  and  devised, 
that  all  his  slaves  should  be  set  free  on  their  arriving  at  25  years 
of  age.  The  children  of  the  testator  exhibited  a  bill  in  equity 
against  the  executors,  alleging  the  invalidity  of  the  will,  and  pray 
ing  a  decision  of  the  court  thereon.  The  court  pronounced 
against  the  validity  of  the  will.  Ford  arrived  at  the  age  specified 
in  the  will  after  the  court  had  pronounced  against  its  validity. 
And  the  question  on  these  facts  is,  whether  Ford  was  entitled  to  his 
freedom  or  not. 

Per  Cur.  Owslcy,  J.  Ford  claims  his  freedom  under  the  will ; 
and  was  the  question  of  his  right  governed  exclusively  by  the  import 
of  the  will,  we  should  have  no  difficulty  in  pronouncing  Ford  a  free 
man.  He  had  arrived  at  the  age  of  25  years,  the  commencement 
of  this  action,  and  the  will  expressly  declares  he  should  be  eman 
cipated  at  that  age. 

But  the  will  has  been  declared  to  be  inoperative,  by  the  decree 


OF  THE  EMANCIPATION  OF  SLAVES.  313 

of  a  court  of  equity,  and  that  decree  was,  in  argument,  contended 
to  be  conclusive  i'n  the  present  case.  But  Ford  was  no  party  to 
that  suit ;  and  it  was  insisted  in  argument,  that  as  to  him  the  de 
cree  can  have  no  operation  in  this  contest.  It  must  not  be  for 
gotten,  that  at  the  time  the  decree  was  pronounced,  Ford  had  not 
arrived  at  the  age  to  which,  by  the  will,  he  had  to  arrive  before 
he  was  entitled  to  his  freedom.  He  could  not,  therefore,  have  been 
made  a  party,  and  the  failure  to  have  made  him  a  party,  cannot  be 
alleged  to  render  the  decree  inoperative  as  to  him. 


CHEW  v.  GARY.  June  T.  1825.  6  Har.  &  Johns.  Rep.  526.  ; 
S.  P.  HUGHES  v.  NEGRO  MILLY  et  al.,  5  Har.  &  Johns. 
Rep.  310.  ;  HAMILTON  v.  CEAGG,  6  Har.  &  Johns.  Rep. 
16. 

Suit  for  freedom.  Mary  Ann  Wood  devised  as  follows  :  "  My 
will  and  desire  is,  that  all  my  negroes  shall  be  free,  except  my  ne 
gro  woman  Nanny  ;  and  my  will  is,  that  she  shall  serve  my  mo 
ther  Ann  Brown  during  her  life,  and  at  her  death,  my  said  negro 
woman  Nanny  to  enjoy  her  freedom."  The  petitioner  for  freedom 
was  the  child  of  Nanny,  and  was  born  after  the  death  of  Mary  Ann 
Wood,  and  during  the  life  of  Ann  Brown.  The  defendant  de 
murred  to  the  petition,  and  the  court  ruled  the  demurrer  sufficient, 
and  the  petitioner  appealed.  Judgment  affirmed. 

4. 

In  the  Matter  of  NAN  MICKEL,  a  Negro  Girl.  Aug.  T.  1817. 
14  John's.  Rep.  324.;  S.  P.  PETRY  v.  CHRISTY,  19  Johns. 
Rep.  53. 

The  testator,  by  his  last  will,  devised  as  follows  :  "  I  manumit  The  act  of 
and  give  freedom  to  my  negro  woman,  Mott,  and  her  daughter  Nan, 


immediately  after  my  decease."    After  the  date  of  the  will  the  tes-  be  perfect- 
tator  sold  Nan.     On  a  habeas  corpus  to  the  assignee  of  the  purcha-  delivering 


ser,  the  question  before  the  court  was,  whether  Nan  was  entitled 

to  her  freedom.  to  the  slave 

or   some 

Per  Cur.     The  sale  made  by  the  testator  after  making  his  will  third    per- 
was,  pro  tanto,  a  revocation  of  his  will.     The  will  has  no  effect  be-  benefit 
fore  the  death  of  the  testator.     Although  a  manumission  of  a  slave 
does  not  rest  upon  the  principles  of  a  contract,  but  is  an  act  of  be 
nevolence,  sanctioned  by  the  statute,  and  made  obligatory  if  in 
40 


314  SLAVERY. 

writing;  yet  such  writing  ought  to  pass  out  of  the  hands,  and  from 
under  the  control  of  the  master.  In  all  the  cases  we  have  had 
hefore  us  on  this  question,  the  certificate  of  the  master  has  either 
been  delivered  to  the  slave,  or  to  some  third  person  for  his  benefit, 
and  the  act  has  thereby  become  consummated.  But  in  the  case 
before  us,  it  must  be  considered  as  resting  only  in  intention.  No 
act  has  been  done  that  is  binding  on  the  master.  We  are  of  opi 
nion,  therefore,  that  the  girl  is  not  entitled  to  her  freedom. 

5. 
PLEASANTS  v.  PLEASANTS.     2  Call's  Rep.  319.  357. 

The  testator,  by  his  will  in  1771,  directed,  that  "all  his  slaves 
should  be  free,  when  they  arrived  at  the  age  of  30  years,  and  the  laws 
of  the  land  would  permit  them  to  be  free  without  being  transported 
out  of  the  country  ;  that  is,  all  his  slaves  now  born,  or  hereafter 
shall  be  born,  whilst  their  mothers  were  in  the  service  of  him  or 
his  heirs,  to  be  free  at  the  age  of  30  years,  as  above  mentioned, 
their  age  to  be  adjudged  of  by  his  trustees."  He  then  gave  his  son 
Robert  eight  negroes,  "  on  condition  he  allowed  them  to  be  free 
at  the  age  of  30  years,  if  the  laws  of  the  land  would  admit  of  it ;" 
and  then  devised  the  residue  of  the  slaves  to  sundry  persons  under 
similar  conditions. 

Held  by  the  court,  that  the  limitations  were  good  in  the  event  of 
such  a  law  being  passed,  while  the  slaves  remained  in  the  posses 
sion  of  the  family,  without  change  by  the  intervention  of  creditors 
or  purchasers  ;  it  being  considered  too  rigid  to  apply  the  rule  re 
specting  the  limitation  of  the  remainder  of  a  chattel  upon  too  re 
mote  a  contingency,  with  all  its  consequences,  to  the  present  ca.-e ; 
but  that  a  reasonable  principle  ought  to  be  adopted  to  suit  its  pecu 
liar  circumstances.  And,  therefore,  after  the  passage  of  the  act  of 
1782,  permitting  the  emancipation  on  certain  conditions  imposed  to 
prevent  persons  emancipated  from  becoming  burdensome  to  the 
community,  the  court  being  of  opinion  that  the  limited  manumis 
sion,  according  to  the  modifications  in  the  will  could  alone  take 
place,  and  that  the  terms  for  securing  the  public  against  the  main 
tenance  of  the  aged  and  infirm,  could  not  be  equitably  imposed 
upon  the  devisees,  it  was  decreed  that  all  the  slaves  (not  subject  to 
the  claims  of  creditors  or  purchasers)  who  at  the  date  of  the  decree 
were  above  the  age  of  45,  and  their  increase  born  after  their  re 
spective  mothers  had  attained  the  age  of  30  years,  should  be 
emancipated  so  soon  as  the  executor  of  the  several  trustees,  or  any 


OF  THE  EMANCIPATION  OF  SLAVES.  315 

other  person,  should,  in  the  courts  of  the  several  counties  in  which 
the  slave  respectively  resided,  enter  into  bonds  with  approved  sure 
ties,  payable  to  the  justices  then  sitting  in  each  court,  and  their  suc 
cessors,  with  condition,  that  the  said  slaves  should  not  become 
chargeable  to  the  public,  or  should  enter  into  one  such  bond  for 
the  whole  in  the  general  court  ;  that  all  who,  at  the  same  date 
were  abve  30  years,  and  under  45,  should  be  immediately  emanci 
pated  and  set  free  to  all  intents  and  purposes,  as  if  born  free  ;  and 
that  all  who  at  the  same  date  were  under  the  age  of  30,  and  whose 
mothers  had  not  attained  that  age  at  their  birth,  and  all  their  future 
descendants,  born  while  their  mothers  were  in  such  service,  should 
serve  their  several  owners  until  they  should  arrive  at  30  years  of 
age,  and  then  be  free. 

6. 
WALTHALL'S  EX'RS  v.  ROBERTSON  et  al.      June   T.   1830. 

2  Leigh's  Rep.  189. 

In  the  year  1819,  Francis  Walthall  made  his  will,  and  devised  as 
follows  :  "  Item,  if  it  be  agreeable  to  the  laws  of  this  state,  (Virginia) 
in  which  I  live,  that  after  the  death  of  my  said  wife  Mary,  it  is  my  valid,  and 
will  and  desire,  that  the  following  slaves  owned  by  me,  viz.  Joan,  w 


Sen'r,  Gary,  Jack,  Tom,  and  Peter,  shall,  as  soon  as  they  attain  condkion^ 

performed. 

the  age  of  thirty-one  years,  be  freed  ;  and  I  appoint  my  friends,  J. 
Morris  and  E.  H.  Hendrick,  trustees  for  the  liberation  of  said 
slaves,  and  for  them  to  make  the  necessary  application  to  the 
court  on  said  slaves'  behalf,  both  as  to  their  freedom  and  remain 
ing  in  the  state.  If  the  laws  of  the  state  be  against  such  procedure, 
then  my  will  is,  that  said  slaves  be  equally  divided  among  my 
children."  After  the  death  of  the  testator's  widow,  his  children 
brought  a  bill  against  the  executor,  Morris,  in  the  county  court  of 
Buckingham,  who  decided  they  were  not  entitled  to  their  freedom 
and  decreed  a  division  among  the  plaintiffs.  The  executor  appealed 
to  the  superior  court  of  chancery  of  Richmond,  which  affirmed 
the  decree,  and  then  he  appealed  to  this  court. 

Per  Cur.  Cabel,  J.  The  testator,  by  his  will  says,  if  the  law 
will  suffer  my  slaves,  if  emancipated,  to  remain  in  Virginia,  I  free 
them.  If  the  laws  will  not  suffer  it,  I  give  them  to  my  children. 

Per  Greeny  J.  The  question  is,  whether  the  testator  intended 
that  the  slaves  in  question  should  be  freed  (to  use  his  own  expres 
sion)  upon  his  wife's  death  at  all  events,  unless  the  law  in  force 


316  SLAVERY. 

when  that  happened  should  prohibit  emancipation  upon  any  terms  ? 
or,  that  they  should  be  freed  only  in  the  event  that  the  laws  should 
then  permit  emancipation,  and  those  emancipated  to  remain  in  the 
state,  by  leave  of  the  courts,  or  otherwise.  This  last  was  the  con- 
'  struction  adopted  by  the  courts  below,  and  I  think  the  construction 
the  correct  one.  The  expression,  "  If  the  laws  of  Virginia  be  agains* 
the  said  procedure,"  refers  to  all  which  the  testator  had  directed 
to  be  done,  both  to  the  emancipation  of  the  slaves,  and  procuring 
permission  to  them  to  remain  in  the  state.  And  by  the  law  at  the 
date  of  the  will,  and  the  testator's  death,  the  slaves  could  not  be 
allowed  to  remain  in  the  state.  They  are  not  entitled  to  their  free 
dom,  and  the  decree  ought  to  be  affirmed. 

7. 

RUCKER'S   ADM'R   v.    GILBERT.      May  T.   1831.     3   Leigh's 

Rep.  8. 

As  to  be  Rucker  by  his  will  declared,  "  Item,  it  is  my  will  and  desire 
deathVthe  that  my  mulatto  man,  James  Gilbert,  should  be  free ;  but  finding 
there  would  be  some  difficulty  for  it  to  be  so,  and  for  him  to  remain 
here,  I  therefore  request  my  executors  to  lay  off  three  acres  of 
land  for  said  James  Gilbert,  at  any  corner  of  my  Tand,  and  Jet  him 
settle  on  it,  that  he  may  think  proper,  and  he  is  to  have  it  during 
his  natural  life,  on  good  behaviour,  and  then  to  return  to  my  estate." 
After  the  death  of  the  testator,  Gilbert  brought  a  suit  in  forma 
pauperis9  against  the  administrator  to  recover  his  freedom,  and  the 
county  court  gave  judgment  in  his  favor ;  and  the  administrator 
appealed  to  the  circuit  court,  which  affirmed  thejudgrnent,  and  he 
appealed  to  this  court. 

Per  Cur.  Brooke,  J.  Did  the  testator  intend  Gilbert  should 
be  free  at  his  death  1  If  he  did,  the  provisions  in  the  will  were 
very  inconsistent.  He  says,  "  It  is  my  will  and  desire  that  my 
mulatto  man,  James  Gilbert,  should  be  free."  If  he  had  stopped 
here,  there  would  have  been  no  doubt,  that  James  Gilbert  would 
have  been  free:  and  here  he  would  have  stopped  if  he  had  simply 
intended  to  emancipate  him ;  but  finding,  as  he  says,  "  there 
would  be  some  difficulty  for  it  to  be  so,  and  for  him  to  remain  here" 
that  is,  as  a  freeman,  he  does  not  desire  his  executors  to  remove 
that  difficulty,  by  sending  him  out  of  the  state,  but  desires  them  to 
lay  off  three  acres  of  land,  which  he  is  to  have  on  good  behaviour; 
certainly  not  as  a  freeman,  because,  as  such,  he  could  impose  no 


OF  THE  EMANCIPATION  OF  SLAVES.  317 

such  condition  upon  him  ;  nor  could  he,  as  he  has  done  in  the  last 
member  of  the  clause,  subject  him  to  the  control  and  direction  of 
his  executors,  in  the  character  of  a  freeman. 

However  much  the  testator  might  have  desired  that  Gilbert 
should  be  free,  it  was  very  clear,  that  he  was  deterred  by  the  diffi 
culties  which  the  law  presented  with  respect  to  residence  here, 
and  under  the  circumstances,  determined  to  do  what  he  consider 
ed  next  best  for  him,  to  settle  him  for  life  on  a  piece  of  land, 
there  to  enjoy  the  fruits  of  his  own  labor.  Both  judgments  re 
versed,  and  judgment  entered  for  appella  t. 


MOOSA  v.  ALLAIN.      Dec.    T.    1825.      16  Martin's   Louisiana 

Rep.  99. 

Appeal  from  the  court  of  the  fourth  district. 

Per  Cur.    Martin,  J.     The  plaintiff  states,  that  he  was,  before 

the  death  of  the  late  Julien  Poydras,  a  slave  for  life  of  said  Poy-  directed  to 

*      be  set  free 

dras  ;  who  bequeathed  to  all  his  slaves  their  freedom,  on  the  fol-  by  the  last 
lowing  conditions :  That  each  of  his  plantations  should  be  sold,  master  can 
with  all  the  slaves  who  might  be  on  each  of  them  respectively.  ^J®^^" 

2d.   That  all  said  slaves  should  be  considered  as  attached  to,  and  of  a  magis 
trate   to 
inseparable   from,  the  respective   plantations  on  which  they  were  prevent  his 

at  the  time  of  the  sale.  3d.  That  the  purchasers  of  said  plantations  0uTof  the 
respectively,  should  be  bound  to  keep  thereon  all  the  negroes  state>9were- 
purchased  with  each  of  them,  during  twenty-five  years,  and  at  the 
expiration  of  that  period  to  enfranchise  them.  That  B.  Poydras 
purchased  one  of  said  plantations,  situated  at  Fausse  Riviere, 
with  a  number  of  slaves  attached  thereto,  of  which  the  plaintiff  was 
one ;  and  afterwards  sold  it  with  the  said  slaves  to  one  of  the  de 
fendants,  with  the  conditions  mentioned  in  the  will,  as  aforesaid, 
which  was  mentioned  at  the  sale,  and  inserted  in  the  proces  verbal. 
But  that  the  said  defendant,  in  violation  of  them,  sold  him  to  Vill- 
neuve  Leblanc  the  other  defendant,  who  has  brought  the  plaintiff 
to  the  parish  of  West  Baton  Rouge,  against  his  will  and  inclina- 
nation,  and  intends  to  remove  him  out  of  the  state.  The  petition 
concludes  with  a  prayer  for  the  recession  of  the  sale  of  Leblanc  ; 
that  he  maybe  ordered  and  decreed,  to  restore  the  plaintiff  on  the 
plantation  at  Faussee  Riviere,  with  which  he  was  sold,  and  be  en 
joined  from  removing  him  therefrom.  The  defendant  pleaded  the 
general  issue.  There  was  judgment  for  the  defendant,  and  the 


818  SLAVERY. 

plainti  T  appealed.  By  a  clause  of  the  will,  the  testator  directs  the 
terms  of  sale  of  his  plantations  and  slaves  in  the  following  words  : 
"  The  sales  of  any  of  my  plantations,  as  to  the  slaves  which  are 
attached  to  them,  (and  all  my  slaves  are  to  be  considered  as  at 
tached  to  them,)  is  to  be  made,  with  the  obligation  imposed  on  the 
purchaser  of  my  plantations,  their  heirs  and  assigns,  all  the  slaves, 
of  either  sex,  who  shall  be  sold  with  the  said  plantations  respect 
ively,  even  the  children  born  or  to  be  born,  at  the  expiration  of 
twenty-five  consecutive  years,  from  the  date  of  the  sale.  And  the 
slaves,  who  at  this  epoch  may  not  have  the  legal  age  for  emanci 
pation,  shall  be  bound  to  work  for  their  respective  purchasers,  their 
heirs  and  assigns,  till  they  reach  that  age  ;  when  they  are  to  be 
emancipated  as  aforesaid.  Likewise,  the  purchasers  of  my  said 
plantations  are  to  be  bound  for  themselves,  their  heirs  and  assigns, 
to  have  care  of,  and  treat  with  humanity,  and  keep  on  said  plan 
tations  respectively,  without  requiring  any  labor  from  them,  all 
such  slaves  so  purchased,  who  may  evidently  have  attained  the 
age  of  sixty  years,  and  pay  them  annually  a  sum  of  twenty-five 
dollars,  as  a  relief  against  the  infirmities  of  age.  These  terms  are 
to  be  rigorously  executed,  and  all  persons,  in  the  name  of  human 
ity,  and  particularly  the  officers  of  the  state,  are  authorized  and 
requested  by  me,  to  cause  them  to  be  executed  and  respected." 
The  right  to  remain  on  the  plantation,  with  which  each  of  the  tes 
tator's  slaves  was  sold,  is  only  given  to  those  who  may  have  attain 
ed  the  age  of  sixty  years,  at  the  expiration  of  twenty-five  years 
from  the  sale.  In  the  mean  while  the  right  of  a  purchaser  to 
the  labor  of  the  slaves,  wherever  he  chooses  to  have  it  performed, 
is  perfect,  unless,  perhaps,  the  slave  may  be  allowed  the  aid  of  the 
magistrate,  in  case  of  an  evident  attempt  to  transport  him  out  of 
the  jurisdiction  of  the  state,  in  order  to  frustrate  his  hope  of  eman 
cipation,  under  the  will  and  sale,  by  compelling  the  purchaser  to 
give  security  for  the  forthcoming  of  the  slave  in  due  time,  or  other 
wise.  In  the  present  case,  there  is  no  evidence  of  even  an  inten 
tion  of  the  defendant,  Leblanc,  to  transport  the  plaintiff.  Judg 
ment  affirmed. 


OF  THE  EMANCIPATION  OF  SLAVES.  319 

9 

BURROTJGH'S  ADM'R  v.  Negro  Anna.   June  T.  1817.    4  Har.  & 
Johns.  Rep.  262. 

Petition  for  freedom.     The  petitioner  was  the  slave  of  one  A  devise  to 
Burroughs,   and   claimed  to  be  free  under  his  will,  which  was  in  over  forty- 
the  following  words :   "  I  give  and   bequeath  unto  my  negro  wo-  \sln\aM. 
man,  called  Anna,  her  liberty,  and  the  advantages  of  her  son  as  a 
laborer  so  long  as  she  lives,  and  a  young  bay  mare  three  years  old 
next  spring,  and  four  barrels  of  Indian  corn,  and  three  hundred 
weight  of  pork,  and  one  black  cow  about  six  years  old,  and  a  hoe 
and  an  axe,  and  a  spinning  wheel  and  card,  cotton  cards,  and  one 
iron  pot,  &c.,  and  it  is  my  will  and  desire,  that  my  man  Josias,  her 
son,  be  the  entire  right  aed  property  of  her,  the   said  Anna.     At 
the  time  of  the  death  of  the  testator  she  was  about  forty-five  years 
of  age.     The  defendant  is  the  administrator  of  the  testator.     Tha 
county  court  gave  judgment  for  the  petitioner,  and  the  defendant 
appealed  to  this  court.    Judgment  reversed. 

10. 

QUARLES  v.  QUARLES  et  al.   March   T.    1811.     2  Munf.  Rep. 

321. 

The  court  held,  that  where  slaves  are  specifically  bequeathed  to  The  pro- 
a  child,  when  he  or  she  shall  attain  the  age  of  twenty-one,  or  shall  £TM %pe^ 
marry,  and  no  provision  is  made  for  maintenance  in  the  mean  time,  °-se|}Ily0dte0" 
their  intermediate  profits,  if  not  otherwise  disposed  of,  do  not  pass  the  legatee. 
by  a  general  residuary  clause,  but  they  belong  to  the  legatee  ;  and 
the  same  rule  applies  to  the  interest  from  the  time  of  the  receipt 
thereof  by  the  executor,  and  no  good  reason  appearing  for  failing 
to  apply  the  principal  to  the  use  of  the  legatee.     See  Graham  v. 
Woodson,  2  Call's  Rep.  249  ;  Coke  v.  Wise,  3  Hen.  &  Munf.  463  ; 
Dilliard  v.  Tomlinson,  1  Munf.  183.  214. 

HARRIS  v.  CLARISSA  AND  OTHERS.    March  T.  1834.     6  Yerger's 
Tennessee  Rep.  227. 

This  was  an  action  of  trespass  and  false  imprisonment,  brought  A  citizen 
by  the  defendants  in  error  against  the  plaintiff.     The  defendant  ^™^e 
below  pleaded,  that  they  were  slaves  for  life.     Upon  the  trial  it  was  year  189°> 
proved  that  Clarissa  was  originally  a  slave,  the  property  of  Thomas  E^1 
Bond,  a  citizen,  at  the  time  of  his  death,  of  the  state  of  Maryland,  ™dnt 


testa- 


320  SLAVERY. 

which  is  Bond  died  in  1800,  and  his  last  will  and  testament  contains  the  fol- 
ing  chm°se  :  lowing  clause  :  "  And  my  mind  and  will  further  is,  that  all  the  ne 
ther,  my  groes  which  I  have  herein  before  given  to  my  children,  which  are 
mind  and  under  the  age  of  twenty-five  years,  and  also  all  the  young  negroes 
all  the  'which  I  may  have  in  possession  at  the  time  of  my  decease,  shall 


have  their  freedom  when  they  respectively  arrive  at  ihe  age  of 
twenty-five."  Clarissa  was  one  of  the  young  negroes  belonging 
given  to  my  to  said  Bond  at  the  time  of  his  death,  she  being  then  about  ten 
which  are  years  old.  Hannah,  Delia,  and  Edward,  three  of  the  plaintiffs,  are 
age^o?6  children  of  Clarissa,  and  were  born  after  the  death  of  said  Bond, 
twenty-five  and  before  the  said  Clarissa  arrived  at  the  age  of  twenty-five. 
also^a'll  the  Edy  and  Martha,  two  of  her  children,  also  plaintiffs,  were  born 
groesg  ]  a^ter  she  was  twenty-five  yeais  old.  They  were  all  born  in  Ten- 
which  I  nessee,  and  neither  of  the  children  are  twenty-five  years  old.  It 

may  have  . 

in  my  pos-  was  admitted,  that  slaves  could  be  set  free  in  Maryland  in  1800, 

thTtim^of  by  last  will  and  testament.     The   defendant   derived   title  to  the 

cease  Ifhall  P'amtl^s  through  M  s.  Eliza  Love,  a  daughter  of  the  said  Thomas 

have  'their  Bond.    The  court  charged  the  jury,  that  Clarissa  wouldjiot  be  free 

when  they  until  she  arrived  at  the  age  of  twenty-five.     That  when  she  arrived 

ty  aSTat  at  *hat  a&e  she  was  free>  and  a11  her  children  horn  af%ter  that  period 

the  age  of  were  free;   but,  as  to  those  born  before  she  was  twenty-  five,  they 


- 

five."          would  be   slaves  until  they  arrived  at  the  age  of  twenty-five,  and 
the]chil-hat  then  tbey  would  also  be  free  ;  and  that  in  no  case  could  they  be 


dren  of  the  ^g^   an(j   deemed  slaves  for  life.     The  verdict  of  the  jury  was, 

female  J      J 

slaves,  who  "that  they  find  the  issues  in  favor  of  the   plaintiffs;  and  that  the 

vfsiVn  P  J  said  Clarissa  and  her  two  youngest  children,  Edy  and  Martha,  are 

tTeTto^be  not  s^aves  J  and  that  the  three  eldest  children,  Hannah,  Delia,  and 

free  at  Edward,  will  be  free  when  they  arrive  at  the  age  of  twenty-five. 

five,  ^vvere  Per  Cur.     Catron,  Ch.  J.    Thomas  Bond,  a  citizen  of  Maryland, 

although*'  in  the  year  1800,  made  his  last  will,  by  which  he  liberated  several 

born  be-  of  ^\s  siaves,  and  amongst  other  devises  and  bequests  were  the  fol- 

fore   their 

motherwas  lowing  : 


lst-  *  oive  to  rny  son,  Phil.  Bond,  a  negro  man,  Bishop,  to  serve 
old*  him  five  years  after  my  death  ;  and  at  the  expiration  of  said  five 

years,  the  said  Bishop  to  be  a  freeman. 

2d.  I  give  to  my  son  Edward  Bond,  one  negro  boy  named  Jim, 
aged  fourteen  years,  to  serve  him  until  he  is  twenty-five  years  of 
age,  and  then  at  the  expiration  of  the  time  to  be  a  freeman. 

3d.  I  give  to  my  son,  Thomas  Bond,  a  negro  boy  named  Fred- 
crick,  aged  twelve  years,  to  serve  him  until  twenty-five  years  of 
age,  and  then  at  the  expiration  of  that  time  to  be  a  freeman.  One 


OF  THE  EMANCIPATION  OF  SLAVES.  321 

negro  boy  named  Abelard,  aged  one  year,  to  serve  him  until  he  is 
twenty-five  years  of  age,  and  then,  at  the  expiration  of  that  time,  to 
be  a  freeman. 

4th.  My  will  is,  that  my  negro  woman  named  Dinah,  shall  have 
her  freedom  at  my  death  ;  my  negro  woman,  Suck,  to  have  her 
freedom  at  the  expiration  of  three  years  after  my  death;  my  negro 
woman,  Rachel,  shall  have  her  freedom  at  the  expiration  of  five 
years  after  my  death ;  negro  Betty,  which  1  have  given  unto  my 
daughter  Elizabeth  Gibson,  shall  have  her  freedom  at  the  expira 
tion  of  four  years  after  my  death, 

And  further,  my  mind  and  will  is,  that  all  the  negroes  which  I 
have  hereintofore  given  to  my  children,  which  are  under  the  age 
of  twenty-five  years,  and  also,  all  the  young  negroes  which  I  may 
have  in  my  possession  at  the  time  of  my  decease,  shall  have  their 
freedom  when  they  respectively  arrive  at  the  age  of  twenty-five. 
Thomas  Bond  died  in  Maryland,  and  the  will  was  duly  proved  and 
authenticated.     The  clauses  recited,  emancipating  the  slaves  of 
the  testator,  were  made  in  accordance  with  the  act  of  Maryland  of 
1796,   ch.   67.  sec.   13.,  by  which  it  is  provided,  "that  from  and 
after  the  passage   of  this  act,   it  shall  and  may  be  lawful  for  any 
person  or  persons,  capable  in  law  of  making  a  valid  will  and  testa 
ment,  to  grant  freedom  to,  and   effect  the  manumission  of,  any 
slave  or  slaves  belonging  to  such  person  or  persons,  by  his,  her,  or 
their  last  will  and  testament ;  and  such  manumission,  of  any  slave 
or  slaves  may  be  made  to  take  effect  at  the  death  of  the  testator 
or  testators,  or  at  such  other  periods  as  may  be  limited  in  such  last 
will  and  testament."     The  statute  prohibits  manumission  to  the 
prejudice  of  creditors,  of  slaves  over  forty-five,  and  also  of  such  as 
shall  not  be  able  to  work  and  gain  a  sufficient  maintenance  and 
livelihood  at  the  time  the  freedom  given  shall  commence.     Clarissa, 
at  the  time  of  the  testator's  death,  was  about  ten  years  of  age, 
and  claims  her  freedom  by  that  clause  of  the  will  manumitting  the 
young  negroes.     Before  Clarissa  was  twenty-five,  she  had  three 
children,  Hannah,  Delia,  and  Edward;  after  that  age  she  had  Edy, 
and  Martha.     The  mother  and  five  children  all  sued  jointly  in  this 
action.     The  circuit  court  adjudged  Clarissa  free  at  twenty-five, 
and  that  Martha  and  Edy,  following  the  condition  of  the  mother, 
were  free,  because  born  after  she  was  free.     The  court  also  ad 
judged,  that  the  three  children  born  before  Clarissa  was  twenty-five, 
followed  the  condition  of  the  mother,  and  would  be  free  at  their 
respective  ages  of  twenty-five  ;  neither  of  them  at  the  time  of  the 
41 


322  SLAVERY. 

time  of  the  trial  being  that  old.  To  this  part  of  the  charge,  and 
finding  of  the  jury  thereon,  error  is  assigned  for  the  plaintiffs  in 
error ;  and  also  for  the  defendants  in  error,  Hannah,  Delia,  and 
Edward,  who  claim  to  have  been  born  free. 

This  cause  has  been  argued  with  an  anxiety  for  the  defendants 
in  error,  and  with  an  ability  on  both  sides,  leaving  the  court  nothing 
to  wish,  save  something  of  information  of  the  course  of  adjudica 
tion  in  Maryland,  if  any  has  been  had  there  on  the  subject.  With 
the  lights  before  us,  however,  we  have  come  to  a  conclusion  satis 
factory  to  the  majority  of  the  court. 

The  statute  of  Maryland  is  open  to  remark  in  explanation  of  the 
will.  Young  slaves  incapable  of  supporting  themselves  could  not 
be  emancipated,  if  the  freedom  given  was  to  commence  during 
such  incapacity.  When  making  the  will  the  testator  was  governed 
by  this  restriction  in  reference  to  the  slave  children.  The  statute 
does  not  give  directly  any  powers  to  the  testator  to  control  the  in 
crease  of  the  females  who  were  slaves  at  his  death  ;  yet  he  having 
uncontrolled  power  of  their  freedom  or  slavery,  it  is  perhaps  the 
most  consistent  construction  of  the  act  to  say,  he  had  the  power 
to  declare  the  condition  of  Clarissa's  children  born  before  the  free 
dom  commenced.  As  to  this  middle  state  affecting  the  three  chil 
dren  born  before  the  mother  was  twenty-five,  the  legislature  has 
not  declared  its  will.  And  in  giving  a  construction  to  the  will 
made  pursuant  to  the  statute,  the  court  must  bear  in  mind,  the 
claim  is  one  involving  human  liberty,  and  that  the  testator's  inten 
tion  must  be  favorably  interpreted  to  this  end.  4  Am.  Dig.  535.  ; 
1  Wash.  Rep.  239.  ;  5  Am.  Dig.,  title  "  Slaves. ;"  Cook's  Justi 
nian,  12.  13.  4.  The  increase  must  follow  the  condition  of  the  mo 
ther.  If  when  born  she  was  a  slave»  they  are  slaves  ;  if  free,  they 
are  free. 

She  was  not  a  slave  for  life  ;  this  is  not  insisted  on  ;  but  that  un 
til  she  attained  the  age  of  twenty-five  she  was  a  slave.  So  the 
circuitjudge  thought,  and  instructed  the  jury  that  the  three  children, 
were  slaves  until  the  age  of  twenty-five  years,  when  they  should  be 
free.  Of  course,  if  this  construction  be  the  true  one,  we  have  in 
perpetuity,  slaves  for  a  term  of  years ;  the  descendants  of  Cla 
rissa's  daughters  must  be  in  the  same  condition.  Let  us  run  out 
the  consequences  of  this  construction.  Such  was  to  have  her  free 
dom  at  the  expiration  of  three  years  after  the  testator's  death  ; 
Rachel,  at  the  expiration  of  five  years  ;  Betty,  at  the  expiration 


OF  THE  EMANCIPATION  OF  SLAVES.  323 

of  two  }rears.  At  what  ages  these  women  were  free  does  not  ap 
pear.  Suppose  they  had  children  before  the  time  arrived  ?  Should 
they  be  free  at  the  same  age  the  mother  attained  when  she  was  free  ? 
This  is  in  accordance  to  the  decision  of  the  circuit  court :  or  shall 
they  be  free  at  the  end  of  th2  mother's  term  ?  Had  she  been  a  slave 
forever,  their  condition  would  have  been  the  same.  She  being  a 
slave  for  years,  their  condition  could  not  be  worse.  The  child 
before  born  is  part  of  the  mother,  and  its  condition  the  same;  the 
birth  does  not  alter  its  rights.  If  the  mother  at  the  time  of  the 
birth  be  free,  it  is  free.  Justinian's  Institut.  by  Cooper,  13.  In 
this  respect,  the  rule  governing  slave  property  in  this  state  and  the 
civil  law  are  alike.  It  is  confidently  believed  that  no  such  middle 
ground  can  be  taken  in  this  and  similar  cases.  We  find  conflict- 
Ing  decisions  on  the  subject.  The  case  of  Pleasants  v.  Pleasants, 
2  Call's  Rep.  320.,  decided  nothing  to  afford  any  aid.  It  only  de 
termined  that  the  testator  had  the  right  to  declare  the  condition  of 
the  children  of  his  female  slaves. 

In  the  case  of  Maria  v.  S  nbaugh  2  Randolph's  Rep.  228.,  it 
is  holden,  that  a  female  slave  declared  to  be  free  at  the  age  of  thir 
ty-one  years,  and  having  issue  before  she  arrives  at  that  age,  the 
children  are  slaves  for  life.  But  we  are  told,  the  question  as  to 
the  civil  state  of  the  children  born  before  the  mother  attained  the 
age  of  thirty-one,  depends  upon  the  true  construction  of  the  sta 
tute  of  1753  of  Virg  nia.  Upon  the  policy  of  that  state,  growing 
out  of,  and  evidenced  by  this  and  other  statutes,  is  th  decision 
mainly  grounded.  It  is  a  most  strict  construction,  not  to  say  a 
a  strained  one,  in  prejudice  of  human  liberty,  and  is  in  conflict 
with  the  opinions  of  Chancellor  Wythe  and  Judge  Roam,  in  the 
case  of  Pleasants  v.  Pleasants,  2  Call's  Rep.  338.  In  the  case 
of  Ned  v.  Beal,  in  Kentucky,  2  Bibb's  Rep.  298.,  the  supreme 
court  held,  that  a  female  slave  devised  to  be  free  in  the  year  1804, 
who  had  children  after  the  testator's  death,  and  before  the  year 
1804  was  a  slave  until  1804,  and  that  the  children  were  slaves  for 
life.  With  the  reasons  of  this  decision  we  are  not  satisfied.  In 
New-Jersey,  where  a  will  contained  the  following  clause  :  "  I  leave 
my  two  negro  girls  to  be  sold  by  my  executors  for  the  term  of  fifteen 
years,  and  at  the  end  of  that  term  to  be  free,"  it  was  held,  that  the 
negroes  ceased  to  be  slaves  from  the  time  of  the  sale,  and  therefore 
a  child  born  of  one  of  them  during  the  term,  was  free.  1  Cox's 
Eep.  36.;  4  Am.  Dig.  534. 


324  SLAVERY. 

Something  in  accordance  to  the  principles  of  this  detemination 
was  decided  in  Virginia,  subsequent  to  the  case  of  Maria  v.  Sur- 
baugh,  in  Isaac  v.  West's  executor,  6  Rand's  Rep.  652.;  that  if  the 
construction  of  a  deed  of  emancipation  be  doubtful,  resort  may  be 
-  had  to  the  rule,  that  the  deed  is  to  be  taken  most  strongly  against 
the  grantor,  and  liberally  construed  in  favor  of  liberty ;  a  rule,  grow 
ing  out  of  the  spirit  of  the  laws  of  all  civilized  nations  which  favor 
liberty  ;  that  a  deed  of  emancipation,  by  which  the  master  manu 
mits  his  slaves  at  his  death,  but  directs  that  they  shall  serve  him 
as  long  as  he  lives,  and  at  his  death  go  free  from  all  persor.s,  passes 
a  present  right  to  freedom,  reserving  a  right  in  the  grantor  to  their 
personal  services  during  his  life  as  a  condition  of  the  emancipation. 
Therefore,  a  child  born  of  one  of  the  emancipated  females  in  the 
interval  between  the  execution  of  the  deed  and  the  death  of  the 
grantor,  is  free  from  its  birth.  This  adjudication  proceeds  upon 
the  ground  of  a  vested  right  of  freedom  communicated  to  the  fe 
male,  and  placing  her  on  the  footing  of  a  person  bound  to  service 
for  a  term  of  years,  who  has  a  general  right  to  freedom,  but  there 
is  an  exception  out  of  it  by  contract.  So  of  the  New-Jersey  de 
cision.  Had  Clarissa  a  vested  right  to  freedom  on  the  death  of 
Thomas  Bond  1  As  to  Suck,  Rachel,  and  Betty,  and  as  to  the 
man  Bishop,  devised  for  five  years  to  Phil  Bond,  we  think  there  can 
be  no  doubt  they  were  intended  by  the  testator  to  be  free  persons, 
held  to  service  for  a  term  of  years  ;  nor  can  we  bring  our  minds 
to  believe  the  testator  meant  differently,  than  if  he  had  said,  I  will 
that  my  girl,  Clarissa,  be  free,  but  that  she  serve  my  children  for 
the  term  of  fifteen  years  ;  being  then  twenty-five  years  of  age,  she 
will  be  able  to  support  herself  in  compliance  with  the  statute  of 
1796,  and  will  have  been  raised  to  industry,  and  in  moral  habits  by 
my  children,  so  that  she  may  the  better  enjoy  her  freedom.  Fur 
thermore,  it  is  right  she  should  pay  for  her  raising,  which  by  the 
time  she  is  twenty-five  she  will  have  done.  With  this  explanation, 
no  one  will  deny  that  Clarissa  would  have  taken  by  the  will  a 
present  right  to  freedom  at  the  testator's  death,  encumbered  with 
a  condition  to  serve  fifteen  years.  In  reference  to  Rachel,  Suck, 
Betty,  and  Bishop,  the  testator  was  sufficiently  explicit  to  the  above 
effect,  and  we  think  he  manifestly  meant  the  same  thing  when 
emancipating  his  young  negroes.  Suppose  Suck  twenty-two,  he 
knew  her  age,  and  he  said  she  should  serve  until  she  was  twenty- 
five,  and  then  go  free ;  how  would  this  have  differed  from  the 
words  used  :  "my  woman,  Suck,  to  have  her  freedom  at  the  expi- 


OF  THE  EMANCIPATION  OF  SLAVES.  325 

ration  of  three  years  after  my  death'?  That  Clarissa  rested  under 
most  of  the  disabilities  pertaining  to  a  state  of  slavery,  is  true  ;  but 
that  she  took  a  vested  and  undoubted  right  to  freedom  by  Thos. 
Bond's  will,  is  equally  true.  The  children  born  of  Clarissa,  in  the 
state  of  Tennessee,  came  into  existence  impressed  with  the  rights 
our  laws  confer.  They  were  not  the  slaves  for  life,  of  William  Har 
ris.  They  could  only  be  his  slaves  until  the  termination  of  twenty- 
five  years  from  the  birth  of  their  mother.  Her  state  and  condition 
fixed  that  of  her  increase,  during  the  particular  estate,  and  also 
after  its  termination.  With  us  the  remainderman  takes  the  in 
crease  of  slaves  born  during  the  term.  Timms  v.  Potter,  1  Hay  w. 
Rep.  234.  ;  2  Yerger's  Rep.  586.  If  the  termor  has  no  further 
title,  and  there  be  no  one  to  take  in  remainder,  slavery  ceases  of 
course.  Such  we  take  to  be  the  condition  of  the  three  children  born 
of  Clarissa  before  she  was  twenty-five.  But  as  it  is  insisted,  that 
the  decisions  in  Maryland  will  be  conclusive  of  this  cause,  contrary 
to  our  present  impressions,  we  will  hold  it  up  until  the  next  term, 
so  that  they  may  be  had,  or  rather  such  of  them  as  we  have  not 
seen  and  examined. 

The  cause  was  argued,  and  the  above  opinion  prepared  at  the 
March  term,  1833.  The  case  was  again  argued  at  this  term,  after 
which  the  chief  justice  delivered  the  following  opinion  of  the  court  : 

This  cause  was,  at  the  last  term,  holden  up  under  advisement 
to  obtain  and  look  into  Maryland  authorities.  The  cases  of  Ham 
ilton  v.  Craig,  and  Chew  v.  Gary,  have  been  produced  to  us.  6 
Har.  &  Johns.  Rep.  16.  526.  They  established  the  position,  that 
if  a  negro  woman  slave  be  given  to  A.  for  his  life,  and  at  his  death 
the  slave  to  be  free,  the  increase  born  of  such  woman  during  the 
life  estate,  are  slaves  for  life,  and  the  property  of  him  to  whom  the 
use  is  limited.  In  Maryland,  the  issue  is  considered  not  an  acces 
sary,  but  as  a  part  of  the  use,  like  that  of  other  female  animals. 
1  Har.  &  M'Hen.  Rep.  160.  352.  ;  1  Har.  &  Johns'  Rep.  526.; 
1  Hayw.  Rep.  335.  Suppose  a  brood  mare  be  hired  for  five  years, 
the  foals  belong  to  him  who  has  a  part  of  the  use  of  the  dam.  2 
Black.  Com.  290.;  1  Hayw.  Rep.  335.  The  slave  in  Maryland, 
in  this  respect,  is  placed  on  no  higher  or  different  ground.  Had 
the  defendant,  Harris,  continued  in  Maryland,  and  the  three 
children  born  of  Clarissa,  before  she  attained  twenty-five  years  of 
age,  been  born  there,  they  would  have  been  his  property,  just  as 
much  as  the  produce  of  the  labor  of  Clarissa.  But  Hannah,  De 
lia,  and  Edward,  were  born  in  Tennessee,  and  the  defendant's  righ^ 


326  SLAVERY. 

to  property  in  them  vested  subject  to  our  laws;  by  which,  the  first 
taker  has  the  same  interest  to  the  increase  he  has  to  the  mother. 
Timms  v.  Potter,  1  Hayw.  Rep.  234.;  2  Yerg.  Rep.  586.;  Cook's 
Rep,  113.  381.  Had  Clarissa  been  given  to  Harris  by  will  in  Ten 
nessee,  until  she  arrived  at  the  age  of  twenty-five,  and  then  over 
in  remainder,  Harris  would  have  been  entitled  to  her  services  for 
the  term,  and  to  the  services  of  her  children  for  the  term  ;  but 
then  the  mother  and  also  the  children  would  have  gone  over  to  the 
remainderman.  When  the  title  of  Harris  to  Clarissa  ceased,  his 
title,  by  our  law,  to  the  three  children  ceased.  That  he  has  no 
right  to  their  services  is  manifest. 

North  Carolina  adopted  the  rule  of  nature,  pertaining  to  human 
creatures,  in  declaring  that  the  condition  of  the  mother  should  be 
that  of  the  child.  The  law  does  not  seperate  the  title  :  they  go 
to  the  remainderman  together ;  and  if  there  be  no  remainderman 
to  take  the  mother,  the  child  goes  with  her.  By  Thomas  Bond's 
will,  there  is  no  one  to  take  in  remainder.  His  executors  were  the 
first  takers,  until  the  young  slaves  respectively  attained  twenty-five 
years  of  age,  and  then  they  were  to  go  free.  Harris,  as  distributee, 
took  the  title  the  executors  had.  As  first  taker,  his  title  ended 
when  Clarissa  was  twenty-five.  The  executors  have  no  title  over, 
nor  has  any  one. 

As  to  Hannah,  Delia,  and  Edward,  the  judgment  will  be  re 
versed,  and  the  cause  remanded  for  another  trial.  As  to  Clarissa 
and  the  other  children,  the  judgment  will  be  affirmed,  and  they  go 
free.  Green,  J.,  dissented. 


A  devise 


that  Anna,     HART  v.  FANNY  ANN.  Oct.  T.  1827.     6  Monroe's  Rep.  49. 

Lucy,  &c. 

shall  be  William  Hart  devised  as  follows  :  "  All  the  rest  of  my  slaves,  by 

emancipa 
ted  with       name  Alsey,  Lucy,  Ann,  Selinaand  Turner,  shall  be  emancipated, 

dren,  if       with  their  children,  if  they  should  have  any,  as  soon  as  they  seve- 


arrive  at  thirty  years  of  age,  except  the  last  mentioned,  and 
as  soon  as    by  name  Turner,  who  shall  serve  Jer'h  Davis  until  he  is  21  years 

they  should      ; 

arrive  at      of  age,  and  then  he  be  free. 


oae  ma-  Lucy,  named  in  the  will,  and  mother  of  Fanny  Ann,  attained  the 
"h  w'tS  the  a»e  °f  th"irty  years  25th  of  Dec.  last,  her  child  Fanny  Ann  being 
when  the  about  ten  years  of  age.  Judgment,  that  Fanny  is  free,  and  Hart 

mother  ar 

rives  at       appealed. 

thirtage  °f  Pef1'  Cur'  Bibb,  Ch-  J<  The  aPPellant's  counsel  argues,  that 
years.  Fanny  Ann's  right  to  freedom  does  not  accrue  under  the  will  until 


OF  THE  EMANCIPATION  OF  SLAVES.  327 

she  arives  at  thirty.     The  counsel  for  the  appellee  insists,  that  her 

right  to  freedom  was  consummated  by  her  mother  Lucy's  ariving  at 

the  age  of  thirty. 

The  component  parts  of  the  sentence  of  the  will  reduced  by 
grammatical  rule,  from  the  complex  to  the  simple  and  natural  order 

and  arrangement,  stand  thus :  "  Alsey,  Lucy,  Ann,  and  Selinn, 
shall  be  emancipated  as  soon  as  they  shall  severally  arrive  at  thirty 
years  of  age,  with  their  children,  if  they  should  have  any."  The 
sentence  thus  arranged  and  simplified,  expresses  what  we  think 
the  testator  intended,  and  what  is  expressed  by  his  words.  After 
the  most  attentive  examination,  we  are  satisfied  with  the  opinion 
that  the  right  of  Fanny  Ann  to  her  freedom  is  not  to  be  postponed 
till  she  arrives  at  thirty  years  of  age,  but  was  complete  on  her  mo 
ther's  attaining  thirty  years.  Judgment  affirmed. 

13. 

NEGRO  GEORGE  et  al.  v.  CORSE'S  ADM'R.     June  T.  1827. 
2  Har.  &  Gill's  Rep.  1. 

Petition  for  freedom. 

^  The   plaintiffs  claimed  their  freedom  under  the  will  of  James  Slaves  ma- 
,orse,  which  contained  the  following  words  :  "  Imprimis,  I  hereby 
set  free  all  my  negroes  of  every  description,  in  the  followm-  man 
ner,  which  is  to  say,  the  men,  George,  David,  Jim,  and  Henry,  at 
my  death  ;  also  the  women,  to  wit,  Maria,  Beck,  and  Mary,  with  t 

their  issue  in  case  they  should  have  issue  between  this  time  and  ™  lhe 
the  period  of  my  death  ;  and  the  boys,  as  they  severally  attain  the 
age  of  twenty-one  ;  to  wit :   Isaac  eighteen  years  old,  Levi  fifteen     hd 
years  old,  Sandy,  &c.;  and  the  girls  at  the  age  of  eighteen  with  freedom- 
their  issue,  in  case  they  should  have  issue  ;  to  wit :  Phillis  fourteen 
years  old,  and  Sally  twelve  years  old.     And  it  is  hereby  provided 
f  my  personal  estate,  exclusive  of  the  negroes,  should  not 
be  sufficient  to  discharge  all  my  just  debts,  then  my  will  is  that  my 
executor  or  administrator,  as  the  case  may  be,  may  sell  so  much  of 
my  real  estate  as  will  pay  my  debts,  so  as  to  have  my  negroes  free 
as  before  stated." 

It  was  admitted  that  the  personal  estate  of  the  testator,  either 
including  or  excluding  the  negroes,  was  not  at  the  time  of  his 

leath,  or  at  any  time  since,  sufficient  to  pay  his  debts ;  but  that  his 
real  estate,  mcluding  his  personal  property,  and  excluding  the 

.egroes  were  at  the  time  of  his  death,  and  still  are,  sufficient  to 
pay  h,s  debts.  Verd.ct  for  defendants  and  the  petitioners  appealed 


328  SLAVERY. 

After  argument  the  Court,  Dorsey,  Archer,  and  Earl,  Js.,  affirmed 
the  judgment. 

They  observed  that  until  the  act  of  1796,  ch.  67.,  the  manu 
mission  of  slaves  by  will  was  prohibited,  and  by  the  act  it  could 
only  be  upon  condition  that  it  shall  not  prejudice  creditors.  And 
they  had  a  right  to  their  demands  out  of  the  personal  estate  ;  and 
it  was  not  in  the  power  of  the  debtor  (testator)  to  transfer  their 
claims  to  the  real  estate;  that  the  executor  or  administrator  had 
no  means  of  knowing  whether  the  real  estate  would  be  sufficient. 
And  the  personal  estate  is  the  first  fund  for  the  creditor  to  look  to 
for  the  satisfaction  of  his  demand. 

Earl,  J.,  observed,  that  it  is  not  in  the  power  of  the  testator  to 
confine  the  creditors  to  a  particular  fund  for  the  satisfaction  of  their 
debts  to  whose  demands  the  whole  of  his  estate  was  equally  liable. 
More  particularly  was  it  not  for  him  to  turn  them  over  from  the 
natural  fund,  to  one  more  uncertain  and  less  accessible. 

14. 

NOEL   AND  WIFE    v.    GARNETT.      Oct.    T.    1786.      4   Call's. 

Rep.  92. 

Of  dower  Garnett  devised  to  his  wife  certain  slaves  during  her  life  or 
8"  widowhood»  and  died  ^testate  as  to  other  slaves.  She  did  not 
renounce  the  provision  under  the  will,  but  held  the  estate  devised 
nine  years.  She  married  Noel,  and  she  and  her  husband  com- 
menced  this  suit  to  recover  her  dower  in  the  undevised  slaves. 
The  court  of  chancery  dismissed  the  bill,  and  the  plaintiffs  appealed 
to  this  court. 

The  court  of  appeals  were  of  opinion,  that  the  appellant,  by  not 
renouncing  her  first  husband's  will,  was  barred  from  recovering 
dower  in  the  undevised  slaves. 

15. 

COOKE,  (a  person  of  color,)  v.  COOKE.     Spring  T.  1823.     3  Lit- 
A  slave  tell's  Kentucky  Rep.  236. 

cannot    be  .          . 

emancipat-  per  Qur,  William  Cooke  entered  into  an  agreement  with  his 
nuncup*-  slave,  Peter,  to  emancipate  him,  on  the  payment  of  two  hundred 
nor  b^a'n  and  fifty  dollars  ;  or,  rather,  the  contract  was  made  with  Seth 
executory  Cooke  and  Abraham  Bohannon,  as  agents  for  the  slave,  and  was 

or    condi-  .  . 

tional  in-     reduced  to  writing,  and  signed  by  them  m  these  words :     A  state 
ment  of  a  contract  made  by  William  Cooke  and  us,  Seth  Cooke 


OF    THE  EMANCIPATION  OF  SLAVES.  329 

and  Abraham  Bohannon,  as  agents  for  Peter,  a  slave,  on  the  terms 
following :  Said  Cooke  agrees  to  emancipate  Peter,  for  two  hun 
dred  and  fifty  dollars,  with  interest  on  one  hundred  and  twenty-five 
dollars  from  the  4th  of  June  1815,  until  paid  the  balance  of  the 
above  two  hundred  and  fifty  dollars.  Signed,  SETII  COOKE, 
June  4th,  1815.  ABM.  BOHANNON." 

In  his  last  illness  he  made  his  nuncupative  will,  reduced  to  writing 
at  the  time  it  was  spoken,  but  not  signed  by  him,  in  which  he  directs 
that  "Peter  should  be  free,  on  the  payment  of  fifty  dollars,  a  balance 
of  $250  which  Seth  Cooke  and  Abraham  Bohannon,  as  agents  for 
Peter,  had  undertaken  to  pay;  which  is  all  paid  but  the  aforesaid  fifty 
dollars."  After  his  death  Peter  paid  the  remaining  fifty  dollars  to 
his  widow,  and  executrix,  and  brought  this  action  of  trespass,  as 
sault,  battery,  and  false  imprisonment,  against  the  appellee,  to  assert 
his  right  of  freedom.  On  the  trial,  it  was  proved,  that  after  the  date 
of  the  aforesaid  contract,  Peter  went  at  large  as  a  free  person,  by 
the  indulgence  of  his  master,  who  until  his  death  always  recognized 
the  rights  of  Peter  to  freedom,  on  the  payment  of  two  hundred  and 
fifty  dollars.  The  court,  on  the  application  of  the  appellee's  coun 
sel,  instructed  the  jury,  that  Peter  could  not  support  his  claim  to 
freedom,  under  the  writing  aforesaid,  because  it  was  an  executory 
contract ;  and  that  the  plaintiff's  remedy,  if  any,  was  in  a  court  of 
equity  ;  and  that  slaves,  when  they  pass  by  last  will  and  testament, 
being  considered  as  real  property,  could  not  pass  by  a  nuncupative 
will.  The  jury  found  a  verdict,  and  a  judgment  was  thereupon 
rendered  against  Peter,  and  he  has  appealed  to  this  court. 

However  strong  an  appeal  the  claim  of  Peter  may  make  to  the 
conscience  or  moral  sense,  we  must  accord  with  the  court  below 
in  each  of  these  instructions.  It  has  been  settled  in  this  country, 
by  the  case  of  Donaldson  v.  Jude,  2  Bibb's  Rep.  57.,  that  the 
signing,  sealing,  and  even  the  acknowledgment  or  proof  of  the 
deed  or  will  of  emancipation,  were  all  necessary  requisites  to  an 
nul  the  relation  of  master  and  slave.  It  has  been  since  decided, 
in  the  case  of  Winney  v.  Cartwright,  Spring  T.  1821,  that  the 
proof  or  acknowledgment  of  the  instrument  was  no  longer  neces 
sary,  or  even  a  seal,  under  a  subsequent  statute  ;  but  that  the  right 
acrued  at  the  signing  of  a  writing  expressing  an  emancipation. 
Still,  however,  it  is  necessary  that  the  writing  should  declare  the 
act  done,  and  not  merely  a  stipulation  that  it  shall  be  done  condi 
tionally,  or  on  the  happening  of  some  contingency.  So  that  this 
42 


830 


SLAVERY. 


And  are 
subject  to 
debts  of 
testator. 


writing,  even  if  signed  by  the  deceased  master,  could  not  be  con 
strued  to  be  more  than  an  engagement  to  do  the  very  act  which 
by  law  would  emancipate.     And  however  strong  an  acknowledg 
ment  the  nuncupative  will  may  contain,  of  the  obligation  of  the 
'  contract,  and  that  Peter  has  fulfilled  the  greater   part  ;  yet,  that 
slaves,  as  far  as  respects  wills,  must  be  deemed  and  held  real  estate, 
is  expressly  declared  by  the  provisions  of  a  statute  passed  the  26th 
day  of  November,  1800.    2  Dig.  L.  K.  1247.     And  it  is  a  doctrine 
so  well  established,  that  real  estate  cannot  pass  by  a  nuncupative 
will,  both  according  to  the  provision  of  our  acts  of  assembly  regu 
lating  wills,  and  by  former  decisions  on  similar  statutes,  that  there 
can  be  no  need  of  quoting  authority  to  support  it. 
Judgment  affirmed. 

16. 
DUNN  v.  AMY  et  al.     Nov.  T.  1820.     1  Leigh's  Rep.  465. 

Amy,  James,  and  Ned,  negroes  claiming  to  be  free,  brought 
their  bill  in  the  superior  court  of  chancery  of  Richmond,  charg 
ing,  that  they  had  been  slaves  to  one  Campbell ;  that  Campbell 
died  in  1819,  having  previously  made  his  will,  and  devised  as  fol 
lows  :  "  I  wish  Mr.  Shipherd,  my  executor,  to  emancipate  the 
above-named  Amy  and  her  child  James,  as  also  her  sister  Polly, 
and  her  brother  Ned,  and  all  their  offsprings,  should  they  have 
any  ;  and  if  possible  to  have  leave  granted  to  remain  in  the  state  ; 
if  that  cannot  be  granted,  I  wish  them  (I  mean  Amy  the  princi 
pal)  to  have  the  sum  of  $1,000  as  soon  as  it  can  be  made  after  my 
just  debts  are  paid  ;  the  residue  of  the  money  to  be  converted  into 
United  States  Bank  stock,  the  dividend  to  the  use  of  Amy  and  her 
child  James,  until  James  arrive  at  the  age  of  twenty-one  years  ; 
at  which  time  I  wish  them  equal  in  the  stock  until  her  death,  at  which 
period  I  wish  James  to  have  all  the  stock,  and  Polly  the  house, 
that  is  to  be  left  to  Amy  for  her  life.  If  Amy  and  James  should 
die,  I  wish  Polly  and  Ned  to  have  the  stock  and  house." 

The  executor,  in  pursuance  of  the  will,  executed  deeds  of  eman 
cipation  of  the  slave,  dated  January  4th,  1820,  and  in  May  Term, 
1821,  Mitchell  recovered  judgment,  the  executoin  to  be  levied  of 
assets,  quando  occiderint,  and  the  judgment  was  assigned  to  Dunn  ; 
and  in  May,  1826,  a^/i,  fa  was  sued  out,  and  levied  upon  the  slaves. 
The  court,  Cabal,  J.,  decided,  that  the  slaves  were  manumitted 
by  the  will  of  Campbell,  the  testator,  and  not  by  the  deed  of  eman 
cipation  of  the  executor;  but  the  slaves  were  subject,  nevertheless* 
to  the  testator's  debts. 


OF  THE  EMANCIPATION  OF  SLAVES.  331 

(C.)    BY    CONTRACT. 
1. 

BUTLER  et  al.   v.   DELAPLAINE.     Oct.  T.  1821.     7   Serg.  & 
Rawle's  Rep.  378. 

Per  Cur,     Duncan,  J.      Though  this  is  a  claim  of  freedom,  we  Claims  for 
are  not  so  much  in  favor  of  liberty  as  to  lose  sight,  that  this  class  of  arT^or- 
people  are  acknowledged  as  slaves.    The  master  has  a  property  in  ed> 
them,  and  contracts  respecting  this  species  of  property  are  to  be 
construed  by  the  same   rules  of  interpretation  that  contracts  re 
specting  any  other  species  of  property  are. 

2. 
BEALL  v.  JOSEPH.     Spring  T.  1808.     Hardin's  Rep.  51. 

Trespass  to  try  Joseph's  right  to  freedom.     He  had  been  a  slave  No    deck- 
to  one  Woods,  who  agreed  to  let  Edwards  have  him  for  four  years, 


after  which  he  was  to  be  free.     Both  Woods  and  Edwards  made  *?ade  to  a 

slave,  or 

parol  declarations  to  this  effect     But  Edwards  sold  him  as  a  slave  for  his  b°- 


*°  BealL 

Per  Cur.  It  appears  that  Joseph  was  born  a  slave,  and  it  not 
appearing  that  he  was  ever  out  of  the  limits  of  the  state,  there  is  law 
no  law  by  which  slaves  in  that  situation  can  obtain  freedom,  or 
enjoy  the  rights  of  free  persons,  only  by  deed  in  writing,  or  the  last 
will  and  testament  of  the  owner,  duly  authenticated  and  recorded  ; 
but  no  such  deed,  or  will,  or  certificate  of  freedom,  in  favor  of 
Joseph,  was  produced  at  the  trial.  It  is,  therefore,  clear,  that  no 
declaration  or  promise  made  to  the  slave  in  this  state,  or  for  his 
benefit  by  the  owner,  or  any  other  person,  can  be  enforced  by  a 
court  either  of  law  or  equity.  And  see  Will  v.  Thompson,  in  a 
note  at  the  end  of  the  case,  where  it  was  held,  that  where  a  pur 
chaser  in  writing  contracted  with  the  seller  to  manumit  the  slave 
at  a  specified  time,  is  not  a  ground  for  a  suit  at  common  law  ;  but 
equity  will  enforce  the  contract,  and  give  damages  for  the  deten 
tion  of  the  negro. 


332  SLAVERY. 

contra.  3. 

slaved     NEGRO  CATO  v.  HOWARD.     June  T.  1808.     2  Har.  &  Johns. 

sold   for    a  T>««    ooQ 

terra  of  ReP-  3^3. 

years,    and 

it  is  agreed  Held  by  the  court,    Tilghman,  Polk,  and  Buchanan,  J's.,  that 

-  where  a  slave  was  sold  for  a  term  of  seven  years,  with  an  agree- 
ment  between  the  vendor  and  vendee,  that  at  the  end  of  the  seven 


at  the  end  years,  the  vendee  should  manumit  him,  which  the  vendee  accord- 

of  seven 

years  the    ingly  did,  the  slave  was  entitled  under  the   deed  of  manumission 

purchaser        f    \  .  .     ~         . 

shall  manu-  of  the  vendee  to  his  freedom. 

mit    him, 

and  he  does  • 

so,  the  4- 

free6  "      CUFFY    v-    CASTILLO**.     May   T.   1818.     5  Martin's  Louisiana 

Rep.  494. 

Mathews,  J.,  delivered  the  opinion  of  the  court.  The  plaintiff, 
wh™JhasIa-  and  appellant,  claims  her  freedom,  and  that  of  her  children,  un- 
greed  to  ^er  a  contract  between  her  former  master  and  Cuffy,  a  freeman, 

free    his  •" 

slave  for  a  her  father.  A  copy  of  the  contract  comes  up  with  the  record, 
cannot  be  as  well  as  the  proceedings,  which  took  place  in  a  Spanish  tribunal 
to  frefhlm  on  tliat  contract,  by  which  it  appears,  that  a  judgment  was  rendered, 
after  he  fixing  the  value  of  each  slave  who  was  to  be  manumitted,  under 
ed  a  partial  the  stipulations  in  the  contract,  and  imputing  a  payment  of  310 
dollars  to  the  benefit  of  one  of  them.  By  what  rule  of  law,  or 
principle  of  justice,  the  Spanish  tribunal  acted  in  its  decision,  it  is 
useless  to  inquire.  The  matter  must  be  considered  as  a  res  judi- 
cata,  and  it  is  of  little  importance  in  deciding  the  cause,  as  it  is  now 
placed  before  this  court.  The  expressions  of  the  contract  itself 
show  clearly,  that  Andrew  Almonaster,  the  defendant's  first  hus 
band,  and  former  master  of  the  plaintiff,  bound  himself  to  liberate 
the  slaves  mentioned  therein,  only  on  the  condition  of  receiving 
3,400  dollars,  the  price  of  their  liberty,  stipulated  between  him  and 
Cuffy.  It  does  not  appear  that  the  sum,  or  any  part  of  it,  was  paid 
to  him  or  his  representatives,  except  310  dollars,  which  were  im 
puted  on  the  price  of  John  Baptist,  one  of  the  four  slaves  named 
in  the  contract,  by  the  judgment  of  the  Spanish  tribunal  ;  from 
which  no  appeal  appears  to  have  been  taken,  and  which  fixes  and 
determines  the  appropriation  of  that  sum.  But  even  that  sum, 
were  it  now  to  be  considerated  as  a  general  payment  on  the  con 
tract  for  all  the  slaves  named  in  it,  could  not  avail  the  present  plain 
tiff.  Her  counsel  relies  much  on  principles  of  the  Roman  law; 
quoties  dubia  libertatis  interpretatio  est.  ff.  50.  17.  20.,  and  the  law 


OF  THE  EMANCIPATION  OF  SLAVES.  333 

de  servo  suis  nummia  empti,  40.  1.  40.,  in  which,  among  other  things, 
it  is  declared,  §.  10.,  that,  although  the  whole  price  of  his  freedom 
should  not  be  paid  by  the  slave,  nevertheless  he  acquires  it,  if  the 
deficiency  be  afterwards  supplied  by  his  labor,  or  if  he  should  ac 
quire  it  by  his  industry.  As  to  the  rule  requiring  the  interpretation, 
in  doubtful  cases,  to  be  in  favor  of  freedom,  it  is  sufficient  to  ob 
serve,  that  no  one  rule  of  interpretation  in  law  or  contracts  ought 
ever  to  be  considered  of  so  much  consequence,  as  to  exclude  the 
operation  of  others,  equally  founded  in  justice  and  common  sense. 
Freedom  must  not  be  so  favored  by  interpretation,  as  to  depart 
entirely  from  the  intention  of  the  contracting  parties,  apparent  on 
the  contract  itself.  The  law  which  authorizes  the  residue  of  the 
price  to  be  supplied  by  the  labor  of  the  person  claiming  his  free 
dom,  as  purchased  with  his  own  money,  or  by  the  circumstance  of 
acquiring  property,  is,  in  our  opinion,  (and  as  insisted  on  by  the 
counsel  of  the  defendant,)  applicable  only  to  such  persons  as  are 
made  free  instanter,  on  condition  of  paying  a  certain  sum  in  futuro. 
In  such  a  case,  when  a  part  of  the  price  of  the  person  is  paid,  and 
the  freedman  continues  to  labor  for  his  former  master,  the  value  of 
his  labor  may  be  fairly  imputed  as  a  payment ;  or  if  he  be  suffered 
to  act  as  a  free  person,  and  acquire  property,  he  may  be  compelled, 
by  legal  proceedings,  to  complete  the  payment  of  the  price  of  his 
freedom.  But,  in  the  case  under  consideration,  the  master  con 
tracted  to  give  the  deed  of  emancipation  of  the  children  of  Cuffy, 
when  the  latter  should  have  satisfied  and  paid  him  2,400  dollars. 
This  mode  of  expression  demonstrates  the  intention  of  the  master 
to  liberate  them  in  futuro,  after  the  fulfilment  of  the  condition  on 
which  alone  they  were  to  be  freed,  viz.  the  complete  payment  of 
the  price  of  their  freedom.  On  tendering  the  full  amount  of  the 
sum  for  which  he  promised  to  give  them  their  freedom,  (at  any 
time  perhaps,)  they  would  be  entitled  to  demand  their  freedom. 
But,  without  payment,  or  an  offer  to  pay,  they  surely  can  claim  no 
benefit  under  the  contract  on  which  they  rely.  This  opinion  we 
believe  to  be  in  conformity  with  every  just  rule  for  the  interpreta 
tion  of  contracts.  It  is  supported  by  the  authority  to  which  the 
plaintift's  counsel  has  resorted,  ff.  40.  7.,  de  statu  liberis,  in  the 
fifth  paragraph  of  the  third  law  which  declares,  that  the  statu  liber 
must  fulfil  the  condition  on  which  he  is  to  be  entitled  to  his  free 
dom,  provided  he  be  not  hindered,  and  the  condition  be  possible. 
It  is  laid  down,  that  if  the  condition  on  which  the  slave  is  to  be  set 


334  SLAVERY. 

free,  be  the  payment  of  a  certain  sum  to  the  heir  of  the  master, 
and  he  does  not  pay  the  whole,  he  shall  not  obtain  his  liberty.  Si 
deccmjussus  dare  et  liber  esse,  quinque  del;  non  pervenit  at  liberta- 
met,  nisi  totum  det.  Judgment  affirmed. 

5. 

VICTOIRE  v.  DUSSUAU.     March  T.  1816.     4  Martin's  Louisiana 

Rep.  212. 

Parol   evi-  per  Cur.     Mathews,  J.     In  the  course  of  the  trial  of  this  cause 

an  agree-  in  the  court  below,  the  plaintiff,  here  the  appellant,  offered  parol 

thenfre°er-  testimony  to  prove  a  contract  between  the  defendant  and  appellee 

dom  of  a  an(j  herself,  wereby  the  latter,  who  holds  her  in  slavery,  agreed  to 

slave  is  in-  r   , 

admissible,  emancipate  her  on  condition  of  obtaining  the  reimbursement  ot  the 
price  which  she  had  paid  for  her.  This  testimony  being  rejected 
by  the  parish  judge,  a  bill  of  exceptions  was  taken  to  his  opinion, 
on  which  alone  the  case  comes  up  before  us.  The  right  of  the 
plaintiff  to  maintain  an  action  for  her  emancipation  and  freedom, 
on  this  contract,  is  unequivocally  declared.  3  Part.  2.  8.  And  ac 
cording  to  the  general  provisions  of  the  Spanish  law,  such  a  contract 
may  be  supported  on,  and  proven  by,  oral  testimony.  We  are, 
however,  of  opinion,  that  the  latter  laws  are  virtually  repealed  by 
the  civil  code.  Slaves  are  incapable  of  making  any  contract  for 
themselves,  except  for  their  freedom — an  exception  to  the  general 
rule  allowed  in  favor  of  liberty ;  and  as,  in  this  respect,  they  assume, 
in  some  degree,  the  standing  and  condition  of  free  persons,  the 
rules  of  law  which  direct  and  govern  the  contracts  of  the  latter, 
must  be  applicable  to  those  of  the  former,  where  the  object  of  the 
agreement  is  the  same.  Now,  according  to  our  civil  code,  every 
covenant  tending  to  dispose  by  a  gratuitous  or  incumbered  title  of 
any  immovable  property  must  be  reduced  to  writing,  and  in  case  the 
existence  of  such  covenant  should  be  disputed,  no  parol  evidence 
shall  be  admitted  to  prove  it.  Code  Civil,  310.  art.  241.  This 
principle  we  find  recognized  in  the  same  authority,  when  it  comes 
to  treat  of  the  transfer  of  title  to  immovable  property  and  slaves,  by 
sale,  or  exchange.  Id.  344.  art.  2.  It  is  therefore  clear,  that 
between  free  persons  no  valid  or  binding  contract  can  be  made  so 
as  to  alter  the  title  to  slaves,  unless  it  be  in  writing.  And,  if  we 
are  correct  in  the  position  above  taken,  that  the  same  rules  must 
govern  in  covenants  to  which  slaves  are  allowed  to  become  parties, 
it  is  equally  clear,  that  parol  evidence  ought  not  to  be  admitted  to 
establish  the  existence  of  the  contract  on  which  the  plaintiff,  and 


OF  THE  EMANCIPATION  OF  SLAVES.  335 

appellant,  founds  her  action ;  because  it  tends  to  dispose  of  a  slave. 
The  judge  of  the  parish  court  acted  correctly  in  rejecting  the  parol 
evidence.  Judgment  affirmed. 


(D.)    BY  THE  EFFECT  OF  FOREIGN  LAWS. 
1. 

LUNSFORD  v.  COQUILLON.    May  T.  1824.    14  Martin's  Louisiana 

Rep.  401. 

Per  Cur.     Martin,  J.     The  plaintiff  alleges  she  is  a  free  woman,  If  ±e  avva 
and  the  defendant  wrongfully  detains  her  in  slavery.     The  issue, 


liber  vel  non,  has  been  found  in  her  favor,  and  the  defendant  ap-  move    her 
pealed.     She  does  not  pretend  that  she  was  born  free  ;  and  it  is  t^ky  to 


admitted,  that  if  she  still  be  a  slave,  the  defendant  derives  a  title  to 

her  immediately  from  a  person  who  was  once  her  owner.     But  she  di,  she  be 

comes  free, 
alleges,  that  some  years  ago  her  then  owner  removed  from  Ken-  ipso  facto. 

tucky  into  Ohio,  with  the   intention  of  residing  there,  taking  her 
thither  as  a  part  of  his  family.     That  the  constitution  of  Ohio  pro 
vides,  that  "  there  shall  be  neither  slavery  nor  involuntary  servitude 
in  the  state  ;"  that  she  resided  for  several  years  in  this  man's  family, 
in  Ohio,  continuing  to  serve  him  as  before  ;  that,  having  made  an 
attempt  to  assert  her  freedom,  he  defeated  it  by  her  forcible  remo 
val  into  Kentucky  ;  from  whence  she  was  brought  back  into  Ohio, 
and  afterwards  into  Louisiana.     Her  counsel  urges  that,  as  the 
constitution  of  Ohio  does  not  allow  slavery  in  the  state,  her  eman 
cipation  or  freedom  was  the  inevitable  and  immediate  consequence 
of  the  act  of  her  former  owner,  in  removing  her,  with  the  inten 
tion  of  residing   in  Ohio  ;  that,  as  she  was  a  free  woman  there, 
she   must   be  held  so  every  where.     The  relation  of  owner  and 
slave  is,  in  the  states  of  this  union,  in  which  it  has  a  legal  existence, 
a  creature  of  the  municipal  law.     Although,  perhaps,  in  none  of 
them  a  statute  introducing  it  as  to  the  blacks  can  be  produced,  it 
is  believed  that,  in  all,  statutes  were  passed  for  regulating  and  dis 
solving  it.     The  issue  of  a  female  slave  is  held  to  be  born  in  the 
condition  of  the  mother,  the   maxim  of  the  Roman  law,  partus 
sequitur  ventrem,  being  universally  recognized.      Indians  taken  cap 
tives  in  war,  have  been  declared  slaves,  and  the  absolute  property 
of  the   captor  ;  and  a  kind  of  temporary  slavery  has   been  made 
the  doom  of  persons  of  color  guilty  of  certain  breaches  of  the 


336  SLAVERY. 


law.  2  Martin's  Revisal  of  N.  C.  Laws  ;  2  Martin's  Digest  of  the 
Laws  of  Louisiana,  172.  In  most  of  the  states  recognizing  slavery, 
laws  have  been  passed  to  authorize,  regulate,  or  check  the  eman 
cipation  of  slaves.  In  some,  as  in  Pennsylvania,  laws  have  been 
made  to  abolish  or  modify  slavery.  The  right  of  a  state  to  pass 
laws  dissolving  the  relation  of  master  and  servant,  is  recognized  in 
the  constitution  of  the  United  States,  by  a  very  forcible  implica 
tion.  This  instrument  declares,  that  no  person  held  to  service  of 
labor  in  one  state,  under  the  laws  thereof,  escaping  into  another, 
shall,  in  consequence  of  any  law  or  regulation  thereof,  be  dis 
charged  from  such  service  or  labor.  Hence  the  implication  is 
strong,  that  such  persons,  who  do  not  escape,  but  whose  owners 
voluntarily  bring,  may  be  discharged  by  the  laws  or  regulations  of 
the  state  in  which  they  are  so  brought.  For  if  this  could  not  be, 
to  what  use  would  be  the  prohibition  1  The  counsel  for  the  plain 
tiff,  presuming  that  he  has  thus  shown  the  right  of  states  to  dis 
solve  the  relation  of  owner  and  slave  in  other  cases  than  the  ex- 
cepted  one,  contends,  that  the  state  of  Ohio  having  forbidden  its 
existence,  the  relation  is,  ipso  facto,  dissolved,  when  owners  of 
slaves,  in  other  states,  come  with  such  slaves  into  Ohio,  with  the 
intention  of  residing  there.  The  words  used  by  the  framers  of  the 
constitution  being  the  most  forcible  ones  to  express  the  idea  that 
every  one  in  the  state  should  be  free.  It  is  argued,  that  if  the  rela 
tion  of  owner  and  slave  is  a  creature  of  the  municipal  law,  in  these 
states,  and  may  be  regulated,  modified,  and  dissolved  by  it,  it  fol 
lows,  that  when  dissolved,  according  to  the  law  of  the  domicil  of 
the  owner  and  of  the  slave  who  lives  with  him,  (if  the  slave  can 
have  a  domicil  other  than  his  owner's,)  it  must  be  considered  every 
where,  as  having  legally  ceased  to  exist. 

The  converse  of  the  proposition  is  certainly  true.  An  Indian 
captive  reduced  to  slavery  under  the  laws  of  North  Carolina,  and 
a  colored  man  under  those  of  Louisiana,  would  be  considered  as 
the  propety  of  the  captor  or  purchaser,  in  every  state  in  the  Union 
in  which  the  slavery  of  Indians  or  negroes  is  allowed.  So,  slaves 
legally  emancipated,  according  to  the  law  of  the  domicil  of  the 
owner,  would  be  supported  in  the  enjoyment  of  their  freedom. 
So,  the  incipient  right  to  freedom  of  the  issue  of  a  female  slave, 
registered  according  to  the  laws  of  Pennsylvania,  would  prevail  in 
Kentucky,  notwithstanding  her  removal  to  the  latter  state.  Blbb^ 
Qualities  personates  certo  loco  alicui  jure  impressas  ubique  circumferi 


OF  THE  EMANCIPATION  OF  SLAVES.  337 

et  personam  comitari,  cvm  hoc  effectu  ut  ubivis  locorum,  eo  jure  quo 
tales  persona^  alibi  gauderint  vel  subjecti  sunt  fruenter  et  subjiciantur, 
2  Huberus,  541.  de  Confl.  Legum. 

But  the  plaintiff's  counsel  says,  the  constitution  of  Ohio  did  not, 
on  her  removal,  ipso  facto,  vest  freedom  on  her,  but  conferred  only 
the  right  of  procuring  it  to  be  decreed  by  the  tribunals  of  that  state. 
That  the  provision^  being  a.  penal  one,  ought  not  to  be  enforced  by 
the  courts  of  other  states      That  the  acquisition  of  freedom  by  the 
plaintiff,  or  what  is  the  same  thing,  the.  forfeiture  of  the  owner's 
right,  cannot  be  incidentally  pronounced,  and  cannot  be  decreed, 
except  by  a  judgment  in  a  suit   against  him,  whose  right  is  to  be 
destroyed.     Had  the  framers  of  the  constitution  of  Ohio  intended 
that  slavery  might  exist  in  that  state,  in  the  persons  who  might  be 
removed  thither,  until  certain  formalities  should  be  complied  with, 
they  would  have  used  different  words.     It  would  be  idle  for  a  court 
to  decree,  that  thereafter  slavery  cannot  exist  in  A.  B.,  when  the 
constitution  proclaims  that  it  exists  in  no  one  in  the  state.     The 
article  of  the  constitution  is  not  a  penal  one,  and  denounces  no 
forfeiture.     Penalty  and  forfeiture  essentially  presuppose  the  omis 
sion  of  an  act  commanded,  or  the  commission  of  one  forbidden. 
The  article  does  neither  command  nor  forbid  any  act.     It  warns 
owners  of  slaves  in  other  states,  removing  into  Ohio,  to  sell  or 
leave  them  behind,  if  they  are  not  intended  to  be  emancipted,  and 
promises  emancipation  to  all  slaves  brought  in,  or  permitted  to 
come  in,  on  their  master's  entering  the  state  with  the  view  of  fixing 
their  domicil  in  Ohio.     A  penalty  or  forfeiture  cannot  be  decreed 
without  a  prosecution  and  conviction,  and  must  ordinarily  be  sued 
for  within  a  given  period.     In  almost  every  case  of  removal,  the 
consequences  of  it  are  acknowledged  and  submitted  to.    How  then 
is  the  new  citizen  of  Ohio  to  be  prosecuted,  and  of  what  is  he  to 
be  convicted  1     Should  a  citizen  of  a  neighboring  state,  where 
emancipation  may  be  forbidden,  restricted,  or  attended  with  ex 
pense,  consent  to   allow  a  slave  to  go  and  enjoy  his  freedom  in 
Ohio,  is  the  grateful  slave  to  arrest  and  prosecute  his  former  owner, 
the  first  time  he  accidentally  comes  to  Cincinnati  ?  and  if  he  never 
comes,  and  as  no  forfeiture  can  be  decreed  without  the  defendant 
being  brought  in,  or  at  least  cited,  will  slavery,  in  spite  of  the  con 
stitution,  exist  in  Ohio,  until  the  former  owner  comes  into  that 
state,  and  be  served  with  process  ?  If  the  freedom  of  the  former  slave 
shall  be  a  forfeiture,  which  is  to  be  decreed  in  an  action,  and  the 
owner  die  before  he  is  sued,  so  that  the  pretended  offence  die  with 
43 


338  SLAVERY. 

him,  will  slavery  exist  for  ever  in  Ohio  1  We  conclude,  that  the 
constitution  of  the  state  of  Ohio  emancipates  ipso  facto  such  slaves 
whose  owners  remove  them  into  that  state,  with  the  intention  of 
residing  there. 

That  the  plaintiff  having  been  voluntarily  removed  into  the  state 
by  her  then  owner,  the  latter  submitted  himself,  with  every  mem 
ber  of  his  family,  white  and  black,  and  every  part  of  the  proper 
ty  brought  with  him,  to  the  operations  of  the  constitution  and  laws 
of  the  state ;  and  that,  as  according  to  them,  slavery  could  not  ex 
ist  in  his  house.     Slavery  did  not  exist  there,  and  the  plaintiff  was, 
accordingly,  as  effectually  emancipated  by  the  operation  of  the 
constitution,  as  if  by  the  act  and  deed  of  her  former  owner ;  that 
she  could  not  be  free  in  one  state,  and  a  slave  in  another  ;  that  her 
freedom  was  not  impaired  by  his  forcibly  removing  her  into  Ken 
tucky,  to  defeat  her  attempt  to  assert  her  freedom  ;  nor  by  her 
subsequent  removal,  voluntary  or  forced,  into  this  state.     This 
opinion  is  in  conformity  with  that  of  the  court  of  appeals  of  Vir 
ginia.    Bibb.  2  Marshall's  Rep.  467.     It  can  work  injury  to  no 
one  ;  for  the  principle  acts  only  on  the  willing,  and  volenti  TIM  fit 
injuria.     The  plaintiff's  counsel  has  laid  great  stress  on  the  former 
owner  of  the   plaintiff  removing  into  Ohio,  with  the  intention  of 
settling,  and  it  is  this  circumstance  which  governs  the  case.     In 
the  decision  of  the  court  of  appeals  of  Kentucky,  it  is  expressly 
said,  that  slaves  attending  their  master's  sojourning  in,  or  travelling 
to  Ohio,  are  not  thereby  emancipated.    As  this  point  has  no  bear 
ing  on  the  present  case,  it  is  useless  to  consider  it.     Judgment  af 
firmed,  with  costs. 

2. 

STEWART  v.  OAKES.     Dec.  T.  1813.     5  Har.  &  Johns.  Rep. 

107.  (note.) 

Different          The  court  held,  that  a  slave  carried  at  different  periods  to  Vir- 

?onl°t?tu-      ginia  bv  *lis  owner  residing  in  this  state,  and  employed  working  at 

ting  one      hjs  stone  quarries,  the  several  periods  amounting  in  the  whole  to 

one  year,  such  slave  is  entitled  to  his  freedom  under  the  law  of 

Virginia  of  the  17th  of  Dec  ,  1792,  ch.  103.  §.  2. 


OF  THE  EMANCIPATION  OF  SLAVES.  329 

3. 
RANKIN  v.  LYDIA.     Fall.  T.  1820.     2  Marshall's  Rep.  467. 

Held  by  the  court,  Mills,  J.,  that  where  a  master  took  his  slave  Taking  a 
in  the  state  of  Indiana,  where  slaver}7  does  not  exist,  and  register-  state  where 

ed  her,  under  the  act  of  the  17th  of  Sept.  1807,  which  authorized  sIaveT  is 

not  per- 

the  introduction  of  negroes  and  mulattoes,  (but  not  slaves,)  and  mitted. 
made  valid  a  binding  or  compact  to  serve  for  a  period  of  years  ; 
on  her  return  to  Kentucky,  on  a  question  of  freedom  or  slavery, 
the  slave  was  free.  The  master  agreeing  to  accept  a  temporary 
servitude  of  his  slave  was  an  admission  of  freedom,  which  he  is 
estopped  to  deny,  or  any  other  person  claiming  under  him. 

4. 

HUNTER,  pauper,  v.  FULCHER.  March  T.  1829.  1  Leigh's  Rep. 
172.  ;  S.  P.  GRIFFITH  v.  FANNY,  Gilm.  Rep.  143.  ;  MUR 
RAY  v.  M'CARTY,  2  Munf.  Rep.  393.  ;  RANKIN  v.  LYDIA, 
2  Marshall's  Rep.  467. 

This  was  a'  suit  for  freedom  brought  in  the   hustings  court  of  Where  a 
Richmond.    5  Rand's  Rep.  126.     It  appeared  the  master  took  his  tateVfroni 
slave  from  Virginia  to  Maryland,  and  resided  there  with  him  for  ^jjg1^ 
the  period  of  twelve  years,  and  then  returned  with  him  to  Virgi-  master  in- 
nia.     By  the  statute  of  Maryland,  all  slaves  brought  into  that  state  state, 
to  reside  are  declared  free  ;  which  statute  was  in  force  all  the  time  ^w^de?* 
of  the  slave's  being  in  Virginia.     The  question  was,  whether  the  clared  that 

.  slaves  bro't 

slave  was  free  or  not.     The  hustings  court  decided  he  was  not  en-  in  to  reside 
titled  to  his  freedom.     The  slave  appealed  to  the  circuit  court,  fre°e"  ^nd  e 


which  affirmed  the  judgment  of  the  hustings,  and  the  slave  appeal-     .L 

with  him 
ed  to  this  COUrt.  for  a  peri 

The  court  observed,  they  saw  no  objection  in  principle  to  giving 
full  effect  here  to  the  laws  of  Maryland  operating  upon  the  rights 


of  persons  who  were  subjected  to  them.  held   he 

Per  Ch-een,  J.  The  law  of  Maryland  having  enacted,  that 
slaves  carried  into  that  state  for  sale,  or  to  reside,  shall  be  free, 
and  the  owner  of  the  slave  here  having  carried  him  to  Maryland, 
and  resided  there  with  him  for  twelve  years,  thus  becoming  himself 
a  citizen  of  Maryland,  and  voluntarily  subjecting  himself  and  the 
slave  to  the  operation  of  her  laws,  I  think  the  right  to  freedom 
vested,  and  could  not  be  divested  by  the  bringing  him  back  after 
wards  to  Virginia.  Judgment  reversed. 


340  SLAVERY. 

5. 

HARVY   and  others  v.  DECKER  and  HOPKINS.    June   T.    1818. 
Walker's  Mississippi  Rep.  36. 


The  treaty  ^  Glir'  ^k  is  a  motion  for  a  new  trial,  and  the  reasons  as- 
of  cession  signed  embrace  the  whole  grounds  of  the  case.  Without  making 

t)v    Virffi- 

nia  to  the  points,  upon  which  the  court  below  have  unanimously  agreed,  but 
States1  touching  them  incidental!}',  I  shall  confine  myself  to  such  as  have 
which  gua-  occasioned  a  difference  of  opinion.  I  will,  in  this  place,  premise, 

ranties  to 

the  inhabi-  that  it  is,  and  always  will  be,  a  source  of  regret  to  me  when  I  am 

North°-f  the  so  unfortunate  as  to  differ  from  my  brethren  of  the  bench,  and  it 

ritor   their  "  Particu^arlv  to  be  regretted,  when  the  importance  of  the  question 

titles,  is  great,  and  when  unanimity  is  so  desirable,  both  to  the  bench 

liberties,  an^  to  the  parties  whose  interest  is  the  immediate  subject  of  adju- 

rendervoid  ^^cat^on-     But  as  a  judge,  I  have  a  duty  paramount  to  all  these 

that  article  considerations,  which  must  prevail,  however  unpleasant  to  my  own 

of  the  ordi-   /•     »•  -,       , 

nance  of  feeling,  and  whatever  may  be  the  consequences  to  others.  The 
1787  which  facts  in  this  case  are  not  controverted  :  that  the  three  negroes 
prohibits  were  slaves  in  Virginia  ;  that  in  1784  they  were  taken  by  John 

sliv^rv  in 

thatterrito-  Decker  to  the  neighborhood  of  Vincennes  ;  that  they  remained 
JteteAmay,  there  from  tliat  time  until  the  month  of  July,  1816,  that  the  ordi- 
stitution0n~  nance  °^  congress  passed  in  the  month  of  July  in  the  year  1787, 
prohibit'  and  the  constitution  of  the  state  of  Indiana  was  adopted  on  the 
w?thiQyitB  29th  of  June,  1816.  These  are  the  material  facts,  but  the  law 
When  not  arisin&  out  of  the  ordinance  treaty  of  cession  of  Virginia  to  the 
restrained  United  States  of  that  district  of  country,  arid  the  constitution,  is 
sutut?on?n  controverted.  To  clear  away  the  difficulties  arising  from  extrane- 
intheVHm~  ous  matter>  and  to  place  the  grounds  of  this  opinion  plainly  before 
its  of  the  the  court,  a  short  history  of  the  country  will  be  necessary.  The 

Northwest  •' 

Territory  country  was  within  the  chartered  limits  of  Virginia,  but  from  the 
freemen,  37ear  -  »  until  ^e  Peace  of  17C3,  it  was  subject  to  and  claimed 
by  virtue  of  by  France.  By  the  peace  of  '63,  it  was  ceded  to  Great  Britair. 

the  ordi-  . 

nance  of  It  will  appear  by  reference  to  the  proclamation  of  Gen.  Gage,  in 
can7'  assert  ^^5,  and  to  the  acts  of  Col.  Wilkins,  in  granting  lands  as  gover- 


nor  °^  ^^no<is'  tnat  it  was  under  a  government  distinct  and  sepa- 
in  the         rate  from  the  then  colony  of  Virginia.     During  our  revolutionary 
this  state!     war>  'li  was  conquered  by  the  arms  of  Virginia  ;  but  there  has  been 
exhibited  no  evidence  to  show  that  the  laws  of  Virginia  were  ever 
extended  to  that  country  after  its  conquest,  or  that  Great  Britain, 
after  the  treaty  of  '63,  by  which  she  obtained  it,  ever  changed  the 
laws  then  existing  in  the  province.     I  have  carefully  examined  the 
acts  of  Virginia,  and  can  find  no  provision   extending  its  laws   to 


OF  THE  EMANCIPATION  OF  SLAVES.  341 

that  district  of  country.  I  think,  then,  that  it  is  undeniable,  that 
the  laws  as  they  existed  while  it  was  a  province  of  France,  were 
the  municipal  laws  of  the  country.  This  opinion  is  supported  by 
the  treaty  of  cession  from  Virginia  to  the  United  States,  and  also 
by  the  ordinance  of  1787.  The  treaty  of  cession  provides,  that 
the  French  and  Canadian  inhabitants,  and  other  settlers  who  pro 
fess  themselves  citizens  of  Virginia,  shall  ha  re  their  poss  ssion  and 
titles  confirmed,  and  be  protected  in  the  enjoyment  of  their  rights 
and  liberties.  We  find  that  until  the  governor  and  judges  shall 
adopt  laws,  the  manner  of  passing  and  transferring  estates  and 
sale  of  personal  property  declared  ;  saving  to  the  French  and  Ca 
nadian  inhabitants,  and  other  settlers  of  the  Kaskaskias  and  Vin- 
cennes,  and  other  villages,  the  laws  and  customs  now  in  force 
among  them  relative  to  the  descent  and  conveyance  of  property. 
If  the  laws  of  Virginia  were  extended  to  them,  there  could  exist 
no  possible  necessity  of  making  the  saving  clause. 

The  question  that  necessarily  arises  is,  in  what  relation  did  they 
stand  to  Virginia  ?  As  a  province,  must  be  the  answer  ;  and 
in  this  condition  they  passed  to  the  United  States  under  the  treaty 
of  cession  of  Virginia.  It  is  an  unquestionable  rule,  that  the  laws 
equally  effect  all  persons  and  all  property  within  the  territorial 
limits  of  a  state  or  province,  unless  there  be  some  special  reserva 
tion.  Wherever  a  person  lives,  he  puts  himself,  for  the  time,  un 
der  the  protection  of  the  laws  of  the  place  ;  and  John  Decker  had 
no  privilege  distinct  from  the  French  and  Canadian  inhabitants. 
In  the  treaty  of  cession  they  were  not  parties,  but  the  subject  in 
part  of  the  treaty.  The  clause  guarantying  their  titles,  posses 
sions,  rights  and  liberties,  was  a  matter  of  favor,  and  designed  for 
their  exclusive  benefit.  They  not  being  in  a  situation  to  contract 
for  themselves,  the  sovereign  made  the  contract.  The  cession  of 
Louisiana  is  an  apt  illustration.  The  rights  and  privileges  they 
possess  arise  from  the  treaty  of  cession.  That  the  sovereign  of  a 
conquered  country  can  make  such  changes,  alterations,  and  dispo 
sitions,  as  he  may  think  proper,  is  a  principle  too  well  established  to 
require  the  citation  of  authorities  to  support.  But  it  is  said,  that 
a  treaty  is  a  sacred  instrument,  and  cannot  be  violated.  This  is 
admitted  ;  but  the  question  then  arises,  is  the  clause  in  the  ordi 
nance  prohibiting  slavery,  or  involuntary  servitude,  a  violation  of 
the  treaty  of  cession  ?  Before  an  act  of  congress  is  declared  in 
operative,  for  violating  fundamental  principles,  the  court  ought  to 


342  SLAVERY. 

be  fully  and  completely  satisfied.  I  have  endeavored  to  show  in 
what  condition  these  people  were  after  the  conquest  of  Virginia, 
what  rights  they  possessed,  and  the  rights  they  acquired  under  the 
.  treaty  of  cession.  From  the  facts,  authorities,  and  reasons  ad 
vanced,  ihese  consequences  result,  that,  as  conquered  countries, 
they  were  subject  to  such  laws  as  the  conquerers  chose  to  impose  ; 
that  the  legislature  of  Virginia,  not  making  any  change  in  their 
laws,  the  ancient  laws  remained  in  full  force,  and  that  the  "  titles, 
possessions,  rights  and  liberties,"  guarantied,  were  those  they  en 
joyed  prior  to  the  conquest,  the  "  lex  loci"  not  as  citizens  of  Vir 
ginia,  but  as  a  provincial  appendage.  We  will  now  come  to  the 
ordinance,  and  the  sixth  article  of  the  compact,  which  declares, 
"  there  shall  be  neither  slavery  nor  involuntary  servitude  in  said 
territory,  otherwise  than  for  the  punishment  of  crimes,  whereof 
the  party  shall  be  duly  convicted."  Preceding  the  sixth  article, 
it  is  ordained  and  declared,  that  the  six  articles  shall  be  consider 
ed  as  articles  of  compact,  between  the  original  states  and  the 
people  and  states  in  said  territory,  and  forever  remain  unalterable, 
unless  by  common  consent.  The  legislature  of  Virginia  assigns, 
as  one  of  the  reasons  for  the  alteration  made  in  the  treaty  of  ces 
sion,  that  it  was  to  ratify  and  confirm  the  said  article  of  compact 
between  the  original  states  and  the  people  and  states  of  the  said  ter- 
ritorv-  That  the  sovereign  may  contract  with  the  people,  is  an 
acknowledged  principle ;  and  the  only  question  is,  whether  the 
compact  shall  be  obligatory  on  the  parties.  That  the  people  of 
the  territory  were  parties  is  evident ;  that  their  condition  was 
changed  from  absolute  subjection,  to  the  condition  of  freemen,  is 
equally  clear. 

Then  the  question  is,  did  not  congress  give  a  valuable  consider 
ation  for  the  concession  by  the  people  in  the  sixth  article,  the  pri 
vileges  and  immunities  of  freemen,  for  the  freedom  of  their  slaves  ; 
and  have  not  the  petitioners  a  right  to  claim  the  benefit  of  this 
article  1  But  it  is  contended,  that  the  treaty  of  cession  is  obliga 
tory  and  binding,  and  not  to  be  altered,  not  even  by  the  people 
themselves. 

Let  us  for  a  moment  examine  the  nature  and  quality  of  the  pro 
vision  guarantying  their  titles  and  possessions,  rights,  and  liberties ; 
does  it  relate  to  their  political  or  civil  condition  ?  If  the  latter,  is 
it  not  merely  a  personal  benefit  1  And,  as  such,  they  have  a  right 
to  dispose  of  it.  To  say  they  could  not  dispose  of  their  property, 


OF  THE  EMANCIPATION  OF  SLAVES.  343 

would  be  denying  them  a  privilege  inseparable  from  property  and 
its  dominion.  If  they  could  dispose  of  it  individually,  what  reason 
can  be  offered  why  they  should  be  debarred,  in  their  character  of 
a  people,  from  contracting  with  their  government  for  the  freedom 
of  American  citizens?  To  my  mind  there  can  be  none.  But  it 
is  said  to  be  a  fair  construction  of  that  clause  in  the  ordinance, 
that,  notwithstanding  the  express  words  that  there  shall  not  be 
slavery  or  involuntary  servitude  except  for  crimes,  and  after 
conviction,  yet  the  petitioners  must  be  slaves,  by  the  potency  of  the 
clause  in  the  treaty  of  cession  "  that  their  titles  and  possessions, 
rights  and  liberties,  shall  be  secured  by  them."  For  my  own  part, 
viewing  as  I  do  the  clause  of  the  ordinance  as  a  compact  between 
the  original  states  and  the  people  and  states  of  said  territory,  it  is 
too  plain  to  require  construction.  In  doubtful  matters,  we  resort 
to  construction  ;  but  to  give  it  the  construction  contended  for  by 
the  defendant's  counsel  would  contradict  what  it  so  clearly  declares. 
The  ordinance  provides,  that  there  shall  be  neither  slavery  nor  in 
voluntary  servitude,  otherwise  than  for  the  punishment  of  crimes, 
excluding  all  kinds  of  servitude,  except  that  which  follows  a  con 
viction.  But  according  to  the  construction  of  the  defendant's 
counsel,  those  who  were  slaves  at  the  passing  of  the  ordinance 
must  continue  in  the  same  situation.  Can  this  construction  be 
correct  1  Would  it  not  defeat  the  great  object  of  the  general 
government  1  It  is  obvious  it  would,  and  it  is  inadmissible  upon 
every  principle  of  legal  construction.  Considering  the  six  articles 
of  compact  equally  obligatory  and  binding,  made  upon  sufficient 
consideration,  all  the  objection,  as  to  the  want  of  power  in  con 
gress  to  make  the  compact  with  the  people  of  the  said  territory, 
must  vanish.  Another  point  in  this  case  was  relied  on,  namely  : 
that  if  the  petitioners  were  not  freed  by  the  6th  article  of  the 
ordinance,  they  became  so  by  the  adoption  of  the  constitution  of 
Indiana.  Even  the  power  of  the  people,  in  their  sovereign  capa 
city,  is  denied,  to  effect  a  general  emancipation.  To  test  this,  we 
must  first  inquire  into  the  source  of  sovereignty,  as  understood  in 
these  United  States,  to  reside  in  the  people.  In  all  governments 
whatsoever  there  must  be,  of  necessity,  and  in  the  nature  of  things, 
a  supreme,  irresistible,  absolute,  and  uncontrolled  authority,  in 
which  the  "jura  summi  imperil"  or  the  rights  of  sovereignty  reside, 
and  when  we  speak  of  sovereignty  in  this  sense,  it  is  in  contradis 
tinction  of  the  powers  given  under  a  constitution,  or  the  powers  of 
a  limited  government,  that  a  constitution  emanates  from,  and  is  a 


344  SLAVERY. 

part  of  that  sovereignty  in  its  most  extensive  sense,  as  residing  in 
the  people,  is  universally  acknowledged  by  all  those  best  acquaint 
ed  with  the  theory  and  principles  of  our  government.  That  the 
same  power  that  creates,  can  change,  alter,  or  destroy,  is  a  con 
sequence  too  clear  to  require  it  to  be  supported  by  proof.  The 
people  restrain  the  power  under  a  delegated  authority,  but  put  no 
restraint  upon  themselves.  The  sets  of  the  supreme  power, 
though  contrary  to  natural  rights,  are  nevertheless  binding. 

In  every  case  under  the  social  compact  th;  re  mm  the  an  inequality 
to  destroy  the  validity  of  the  surrender.     Among  an  ignorant  and 
uninstructed  people,  what  are  the  rights  surrendered  ?     Rosseau, 
in  his  Social  Compact,  informs  us,  it  is  the  total  alienation  of  every 
individual  with  all  his  rights  and  privileges  to  the  whole  community, 
and  assigns  the  reasons,  as  one  gives  himself  up  entirely,  and  with 
out  reserve,  and  all  are  in  the  same  circumstances,  so  no  one  can 
be  interested  in  rendering  burthensome  their  common  connection. 
And  again,  he  says,  as  the  surrender  is  made  without  restraint,  no 
one  has  any  thing  to  retain,  if  any  one  had  a  right  distinct  from 
another,  which  he  pretended  had  not  been  surrendered,  each  indi 
vidual  might  question  the  acts  of  the  social  compact ;  and  if  this 
was  permitted,  it  would  destroy  itself,  as  there  would  be  no  com 
mon  umpire  to  appeal  to  :  a  state  of  nature  would  exist,  and  the 
social  compact  be  a  splendid  bauble.     Assume  the  principles  laid 
down  as  acknowledged,  and  they  do  appear  to  me  to  be  so  well 
established  by  all  jurists  and  constitutional  writers,  as  merely  to 
require  them  to  be  stated,  in  order  to  ensure  their  admission.    The 
question  then  resolves  itself  into  this :  What  were  the  rights  dele 
gated  by  the  people  to  the  convention,  or  what  was  the  trust  or 
power  of  that  convention  ?  Was  all,  or  only  a  part  of  the  sovereignty 
committed  to  them  ?  and  if  a  part,  where  are  the  restrictions  to  be 
found  1     The  ordinance  only  restricts  ;  and  these  restrictions  are 
to  be  found  only  in  the  articles   of  compact,  and  relate  simply  to 
the  nature  of  the  government  to  be  formed.     And  that  the  princi 
ples  are  not  inconsistent  with  the  articles  of  compact,  and  one  of 
those  very  articles  is  recognized,  and  made  a  part  of  their  consti 
tution,  under  which  the   petitioners  claim  their  freedom.     And 
how  is  this  claim  to  be  got  over  1      Why,  we  are  told,  it  is  incon 
sistent  with  the  constitution  of  the  United  States,  and  the  treaty  of 
cession  from  Virginia.      The  answer  to  the  latter  will  be  found  in 
the  opinion  given  on  the  first  point ;  and  the  very  reasons  the  court 
have  urged,  as  to  the  defendants  not  having  been  parties  to  the 


OF  THE  EMANCIPATION  OF  SLAVES.  345 

ordinance,  apply  in  fact  to  the  constitution  of  the  United  States; 
and,  as  I  have  already  shown,  they  were  parties  to  the  six  articles 
of  compact.  The  constitution  of  the  United  States  has  nothing  to 
do  with  this  question  ;  and  before  it  could  apply,  Indiana  was 
received  as  one  of  the  members  of  the  Union  ;  and  this  was  sub 
sequent,  and  grew  out  of  the  adoption  of  their  constitution.  If, 
then,  I  am  correct  in  opinion,  that  the  clause  of  the  constitution 
of  the  United  States  is  inapplicable,  (and  there  is  nothing  in  the 
treaty  of  compact,  contained  in  the  ordinance,  inhibiting  the  con^ 
vention  the  power  to  free  the  petitioner,)  by  what  right  are  they 
held  1  All  those  principles  assumed  must  be  fallacious.  Freedom 
was  extended  to  the  slaves  in  Massachusetts  by  their  constitu 
tion.  I  have  it  from  high  authority,  and  I  have  examined  their 
statutes,  and  can  find  no  general  statute  of  emancipation.  And 
so  guarded  was  our  convention  upon  this  subject,  that  they  inhibited 
the  legislature  from  the  exercise  of  the  power  Pennsylvania* 
Delaware,  New-Jersey,  New-York,  and  the  New  England  States, 
Massachusetts  excepted,  have  legislated  on  this  subject ;  and  that 
it  is  a  proper  subject  of  legislative  interference,  when  not  restrained 
by  the  constitution,  is  evident  by  the  caution  of  our  convention, 
and  the  exercise  of  the  power  by  the  several  legislatures  before 
mentioned. 

But  we  are  told  that  the  treaty  of  cession  intervenes.  If  old  Decker 
was  not  a  party  to  the  articles  of  compact,  it  cannot  be  denied  but 
that  he  was,  or  those  who  claim  under  him  were  parties  to  the  con 
stitution  of  Indiana.  If  he  was,  how  can  he  claim  a  particular 
exemption  from  the  operation  of  the  constitution,  according  to  the 
principles  of  the  social  compact  before  laid  down  ?  And  if  ine 
quality  was  to  exempt,  would  it  not  tend  to  destroy  it?  Does  not 
the  first  article  of  the  constitution  declare  the  condition  of  the 
people  of  Indiana  free  ?  and  this  condition,  by  the  last  section  of 
the  first  article,  is  likewise  declared  to  be  out  of  the  control  of 
government,  or  to  be  a  right  reserved  to  the  people.  Under  a 
similar  provision,  slavery  was  abolished  in  Massachusetts ;  and  by 
art.  9.  sec.  7.  of  the  constitution,  the  sixth  section  of  the  ordinance 
is  adopted ;  and  in  art.  9.  sec.  4.  all  laws  conflicting  with  the  pro 
visions  of  the  constitution  are  repealed.  ^Can  it  be  that  slavery 
exists  in  Indiana?  If  it  does,  language  loses  its  force,  and  a  con 
stitution  intended  to  protect  rights,  would  be  illusory  and  insecure 
indeed.  If  the  language  is  plain,  saying  there  shall  be  neither 

44 


346  SLAVERY. 

slavery  nor  involuntary  servitude,  does  it  comport  with  the 
tution  to  say  there  shall  be  slavery  ?  This  dilemma  cannot  be  got 
over  by  those  who  give  it  a  construction  that  would  make  the  pe 
titioners  slaves.  Why  resort  to  construction  in  a  case  so  plain  ? 
Do  the  ruks  of  construing  statutes  apply  to  a  constitution  ?  Where 
does  the  power  reside  of  restraining  the  people  in  their  sovereign 
capacity  ?  Is  there  any  such  power  recognized  ?  Are  we  not  told 
that  the  parliament  of  England  can  pass  any  law,  however  it  may 
violate  first  principles,  and  the  courts  would  be  bound  to  enforce 
it.  It  is  in  vain  to  attempt  to  bind  that  which  is  in  itself  illimitable, 
irresistible,  and  supreme.  But  it  is  contended,  that  the  provisions 
of  the  constitution  admit  of  a  different  construction  ;  that  it  is  pro 
spective  ;  and  to  give  it  the  meaning  its  language  imports,  would 
violate  vested  rights.  What  are  these  vested  rights  ?  Are  they 
derived  from  nature,  or  from  the  municipal  law  ?  Slavery  is  con 
demned  by  reason  and  the  laws  of  nature.  It  exists,  and  can  only 
exist,  through  municipal  regulations,  and  in  matters  of  doubt,  is  it 
not  an  unquestioned  rule,  that  courts  must  lean  in  favorem  vitte  et 
Ubertatis  ?  Admitting  it  was  a  doubtful  point,  whether  the  con 
stitution  was  to  be  considered  prospective  in  its  operation  or  not, 
the  defendants  say — you  take  from  us  a  vested  right  arising  from 
municipal  law  .T  he  petitioners  say,  you  would  deprive  us  of  a 
natural  right  guarantied  by  the  ordinance  and  constitution.  How 
should  the  court  decide,  if  construction  was  really  to  determine  it  ? 
I  presume  it  would  be  in  favor  of  liberty.  From  the  view  I  have 
taken  I  am  satisfied,  that  the  petitioners  are  entitled  to  have  the 
verdict  confirmed,  and  the  motion  for  a  new  trial  overruled. 

6. 
SPOTTS  v.  GILLASPIE.     Nov.  T.  1828.     G  Randolph's  Rep- 

566. 

The  power        Susanna  Gillaspie  sued  in  forma  paupcris  to  recover  her  free- 
towfto6       dom  of  Jacob  Spotts,  who  held  her  in  slavery. 
chmge  the       jt  appeared  that  one  Gilchrist  held  possession  of  a  negro  woman 
of  persons  called  Hannah,  in  Lancaster,  Pensylvania,  as  a  slave,  and  in  April 
very 'under  1782,  devised  the  said  Hannah  to  his  son-in-law  James  Robinsonr 
nhoTbeCan~  who  lived  in  Augusta  county,  Virginia.     In  1786  Hannah,  the 
doubted.      slave,  had  born  of  her  body  a  female  negro  in  the  state  of  Pennsyl 
vania,  named  Susanna,  the  plaintiff;  and  when  about  six  weeks  old, 
the  said  Susanna,  with  her  mother,  was  taken  by  Robertson  to  Vir- 


OF  THE  EMANCIPATION  OF  SLAVES.  347 

gmia,  and  sold  to  Spotts,  the  defendant.  The  act  of  Pennsylvania 
for  the  gradual  abolition  of  slavery  was  passed  in  1780,  and  abo 
lished  the  slavery  of  children  born  after  the  act.  And  the  question 
was,  whether  Susannah  was  entitled  to  her  freedom  in  Virginia.  The 
superior  court  gave  judgment  for  the  plaintiff,  and  the  defendant 
appealed. 

Per  Cur.  We  think  the  plaintiff  is  entitled  to  her  freedom,  and 
the  judgment  of  the  superior  court  ought  to  be  affirmed.  The 
case  appears  to  be  clearly  embraced  by  the  lawr  of  Pensylvania. 
It  includes  all  children  born  of  slaves  after  the  passage  thereof,  to 
whomsoever  their  mothers  might  belong,  whether  citizens  of  Penn 
sylvania  or  other  states.  The  power  of  the  state  of  Pennsyl 
vania  to  change  the  condition  of  persons  held  under  its  law8 
(and  no  other)  in  slavery  cannot  be  questioned,  especially  if  they 
were  not  then  the  property  of  a  citizen  of  another  state,  which  is 
not  the  case  before  the  court.  When  the  act  was  passed,  Gilchrist's 
property  in  Hannah,  and  her  condition  as  a  slave,  were  subject  to 
the  laws  of  Pennsylvania.  It  might,  and  did  change  the  character 
of  his  property  in  her,  and  in  so  far,  her  condition  as  a  slave.  Be 
fore  the  act  of  1780,  he  held  an  absolute  property  in  her  and  her 
children  then  to  be  born.  Afterwards,  though  his  property  in  her 
was,  as  to  her  services,  the  same,  her  condition  was  so  changed 
that  she  could  not  be  the  mother  of  a  slave  in  Pennsylvania,  and 
his  property  to  that  extent  was  changed.  The  law  of  Pennsyl 
vania  was,  as  regarded  his  property  in  her  and  her  condition,  exe 
cuted.  His  will  could  not  effect  this  state  of  things.  He  might 
pass  his  qualified  property  in  her,  and  her  future  offspring,  accord 
ing  to  the  provisions  of  the  act,  but  it  could  not  alter  the  then  con 
dition,  either  of  Hannah  or  her  offspring  born  afterwards  :  they 
remained  as  before.  Susanna,  the  plaintiff,  was  born  under  its 
operation  in  Pennsylvania  :  by  it,  though  born  of  a  slave,  she  was 
free  ;  and  in  this  aspect  of  the  case,  the  court  is  not  called  on 
to  execute  the  law  of  Pennsylvania,  but  the  law  of  Virginia,  which 
does  notnow,and  did  not  then  permit  a  person  free  in  Pennsylvania 
to  be  held  in  slavery  here.  Judgment  affirmed. 


Louis  v.  CABARRUS  et  al.   Aug.  T.  1834.    7  Louisiana  Rep.  170.  the  c™- 
The  plaintiff  claimed  to  be  a  freeman  on  the  ground   that  he 


master    is 


resided  in  the  state  of  Ohio  two  or  three  years.     He  offered  evi-  notshowo. 


348  SLAVERY. 

dence  of  that  fact,  by  showing  that  he  was  seen  there  by  two  or 
three  persons.     The  jury  found  the  plaintiff  a  freeman. 

On  the  appeal  the  court  reversed  the  judgment  below,  on  the 
ground  that  proof  of  the  residence  of  a  slave  in  a  free  state,  the 
constitution  of  which  forbids  slavery  during  the  space  of  two  or 
three  years,  unconnected  with  any  other  proof,  is  insufficient  in  law 
to  entitle  such  slave  to  freedom  ;  and  they  observed  farther,  that  a 
residence  of  the  slave  contrary  to  will,  or  without  the  consent  of 
the  owner,  does  not  deprive  the  owuer  of  his  right  to  his  property. 

8. 
NEGRO  DAVID  v.  PORTER.     Oct.  T.  1799.     4  Har.  &  M'Hen. 

Rep.  418. 

But  not         By  the  testimony  it  appeared,  that  the  petitioner  was  the  property 
hirers  an  of  Richard  Coale,  who  resided  in  Frederick  county  in  this  state, 

infant. 


jn  the  year  j^gg        That  ^  ^  Co&]e  j^^  ^  petjtjoner  to  one 

M'Lean,  who  resided  in  the  state  of  Pennsylvania,  and  was  there 
with  the  petitioner  in  1788.  That  the  agreement  was  executed 
between  the  said  Coale  and  M'Lean  for  the  hire  of  the  petitioner; 
that  the  petitioner  is  now  in  the  possession,  and  claimed  by  the  de 
fendant,  who  resides  in  Frederick  county  in  this  state. 

The  general  court  gave  judgment  that  the  petitioner  is  free,  and 
that  he  be  discharged.  But  see  Porter  v.  Butler,  3  liar.  £ 
M'Hen.  Rep.  168.,  where  the  court  held,  a  slave  is  not  free  under 
the  laws  of  Pennsylvania  if  hired  to  a  resident  of  that  state  by  an 
inhabitant  of  this  state  who  is  an  infant  at  the  time  of  hiring. 

9 

MARIE  LOUISE  v.  MARIOT  et  al.      May  T.  1836.      8  Louisiana 

Rep.  475. 

The    ope-  In  a  suit  for  freedom  it  appeared,  that  the  defendants  took  the 

fore°ign°  complainant  to  France,  where  slavery  is  not  tolerated  ;  and  on  their 

laws  upon  return  still  held  her  as  a  slave.     It  was  contended,  that  sojourning 

immediate  in  the  kingdom  of  France  did  not  emancipate  the  slave  ;  and  2 

STc<t:pethe  Martin's  N.  S.  401.,  and  2  Marshall's  Rep.  476.,  were  cited. 

party  can-  per    Cur.     Matheics,  J.     The  question  is,  whether  the  fact  of 

not  again 

be  reduced  her  having  been  taken  to  that  kingdom  by  her  owners,  where  sla 
very  or  involuntary  servitude  is  not  tolerated,  operated  upon  the 
condition  of  the  slave  so  as  to  produce  an  immediate  emancipation. 
That  such  is  the  benign  and  liberal  effect  of  the  laws  and  customs 
of  that  state,  is  proven  by  two  witnesses  of  unimpeachable 


OF  THE  EMANCIPATION  OF  SLAVES.  349 

bility.  This  fact  was  submitted  to  the  consideration  of  the  jury, 
who  tried  the  cause  under  the  charge  of  the  judge,  which  we  con 
sider  to  be  correct,  and  was  found  in  favor  of  the  party  whose 
liberty  is  claimed.  Being  free  for  one  moment  in  France,  it  was 
not  in  the  power  of  her  former  owner  to  reduce  her  again  to 
slavery. 

10. 

FORSYTH  et  a),  v.  NASH.  June   T.    1816.     4  Martin's  Louisiana 

Rep.  385. 

Per  Cur.     Martin,  J.     The  plaintiffs  in  this  case  claim  the  de-  ^H^|rore 
fendant,  a  negro  man,  as  their  slave.     It  therefore  behoves  them  sumed  tree 
to  show  slavery  in  him  and  property  in  them.     The  evidence  ad- 
duced  for  this  purpose  is,  1st.  A  bill  of  sale  by  which  the  defendant 
was  sold  to  them  "  to  have  and  to  hold  the  said  negro  man,  and  to  chase  was 
dispose  of  him  as  they  shall   think   proper."     This   instrument,  in  a  coun. 
bearing  date  the  5th  of  September,  1803,  was  executed  at  Detroit,  ^.^  gla 


in  the  territory  of  Michigan,  was  there  recorded,  and  is  duly  au-  very  is  not 

thenticated.      2d.  The  deposition  of  David  Delauney,  who  swears  unless  it  be 

he  knows  a  Mr.  Forsyth,  at  St.  Louis,  whose  Christian  name  he  is  ^aa^be- 

ignorant  of,  but  knows  not  the  other  plaintiff;  that  there  was  at  fore  in  one 

Detroit  a  mercantile  house,  under  the  firm  of  Kinsey  &  Forsyth,  is. 

but  he  is  ignorant  whether  Mr.  Forsyth  of  St.  Louis  be  one   of 

that  house  ;  that  he  saw  the   defendant  at  Mr.  Forsyth's  in  St. 

Louis,  but  does  not  know  to  whom  he  belonged.     3d.  The  depo 

sition  of  Nicholas  Girod,  who  swears,  that  while  he  was  mayor  of 

New  Orleans  the  defendant  was  brought  before  him,  and  confessed 

he  was  a  runaway,  and  belonged  to  some  person  the  name  of  whom 

the   witness  does  not  recollect,   who  had  promised  him  his  free 

dom.     4th.  The  deposition  of  A.  B.   Duchouquet,  of  St.  Louis, 

who  swore  he  never  saw  the  defendant  in  the  possession   of  the 

plaintiffs,  because  the  plaintiffs  lived  at  Peoria,  in  the  Illinois  ter- 

ritory  ;   that  the  plaintiff,  Forsyth,  employed  him  in  1813,  to  stop 

the  defendant  ;  that  he  took  him  up  in  New  Orleans,  and  brought 

him  before  the  mayor,  where  he  confessed  he  had  ran  away  from 

the  plaintiffs,  and  did  not  like  to  return  to  them  on  account  of  a 

wife  and  children  he  had  in  New  Orleans.    5th.  The  deposition  of 

Pierre  Le  Vasseur,  who  knew  the  defendant  in  Peoria,  in  the  Illi 

nois  territory,  about  ten  years  ago.     He  was  known  and  reputed 

to  be  a  slave  ;  the  witness  knew  him  in  the  possession  of  Forsyth 

for  four  years.     He  ran  away  from  Peoria,  about  six  years  ago. 


350  SLAVERY. 

The  w'tner  s  some  time  after  met  him  at  Marpertues,  in  the  Illinois 
territory,  and  the  defendant  said  he  had  ran  away  from  his  master 
an  1  was  going  to  St.  Louis.  On  these  facts,  the  counsel  contends, 
that  the  slavery  of  the  defendant,  and  the  property  of  the  plaintiffs, 
are  fully  proven. 

1st.  The  evidence  of  slavery  resulting  from  the  color  of  the  de 
fendant.  Adelle  v.  Beauregard,  1  Martin's  Rep.  183.  ;  from  his 
declarations  that  he  had  a  master ;  that  he  belonged  to  a  man  who 
had  promised  him  his  freedom ;  from  his  attempt  to  justify  his  un 
willingness  to  return  ;  by  the  circumstances  of  his  having  a  wife 
and  children  in  New  Orleans,  thereby  tacitly  admitting  the  obliga 
tion  he  was  under  of  returning  to  the  plaintiffs. 

2d.  The  property  of  the  plaintiffs  is  said  to  be  proven  by  the  bill 
of  sale. 

The  defendant's  counsel  shows,  that  in  the  territories  of  Michi 
gan  and  the  Illinois,  the  only  place  except  New-Orleans  and  St. 
Louis,  which  the  defendant  appears  to  have  inhabited,  slavery  does 
not  exist ;  that  it  is  forbidden  by  law.  The  ordinance  of  congress 
of  the  year  1797,  providing  that  "there  shall  be  neither  slavery 
nor  involuntary  servitude  in  the  said  territory,  otherwise  than  for 
the  punishment  of  crimes,  whereof  the  party  shall  have  been  con., 
vieted.  Provided,  that  any  person  escaping  into  the  same,  from  whom 
labor  or  service  is  lawfully  claimed  in  any  one  of  the  original  states, 
such  fugitive  may  be  lawfully  reclaimed,  and  conveyed  to  the  per 
son  claiming  his  or  her  services  aforesaid."  Hence,  in  the  opinion 
of  the  counsel,  a  presumption  arises,  that  the  defendant  is  free, 
which  overweighs  the  contrary  presumption  which  arises  from  the 
color.  It  is  further  contended,  that  as  the  bill  of  sale  could  convey 
no  title,  unless  the  defendant  had  been  duly  convicted  of  a  crime,  or 
in  case  he  owed  services  in  one  of  the  original  states,  and  had  escaped 
into  the  Michigan  territory,  the  plaintiffs  are  bound  to  bring  the 
defendant  within  one  of  these  two  cases  ;  that  if  the  defendant 
was  convicted  of  a  crime,  by  which  he  became  bound  to  involun 
tary  service,  the  record  of  this  conviction  ought  to  be  produced  ; 
so  ought,  in  the  other  case,  evidence  of  the  duty  of  involuntary  ser 
vice  in  one  of  the  original  states,  and  of  escape  into  the  territory  ; 
that  the  apparent  unlawfulness  of  the  authority  exercised  by  the 
plaintiffs  over  the  defendant,  to  which  he  may  have  submitted  from 
his  ignorance  of  his  right,  or  of  the  means  of  asserting  it,  is  not 
repelled  by  his  admission  that  he  had  a  master,  that  he  belonged  to 
a  person  who  had  promised  him  his  freedom.  For  while  it  appears 


OF  THE  EMANCIPATION  OF  SLAVES.  351 

that  the  plaintiffs  de  facto,  though  not  de  jure,  kept  the  defendant 
for  a  number  of  years  in  servitude,  it  cannot  seem  extraordinary 
that  he  should  refer  to  them  by  the  appellation  of  his  masters  ;  and 
the  alleged  promise  of  freedom  may  well  be  presumed  to  have  been 
made  to  allure  the  defendant  into  submission.  Neither  is  it  said, 
can  the  admission  of  the  defendant,  that  he  ran  away,  be  received 
as  conclusive  evidence  of  a  legal  obligation  to  stay :  flight  from  un 
lawful  servitude  being  more  generally  resorted  to,  than  the  bold 
assertion  of  freedom.  Kept  for  a  number  of  years,  perhaps  from 
his  birth,  in  bondage,  the  spirit  of  the  injured  negro  is  said  to  have 
been  borne  down  by  the  influence  which  long  exerted  mastery  cre 
ates.  We  are  of  opinion,  that  as  the  case  affords  no  evidence  of 
any  residence  of  the  defendant  in  any  country  in  which  slavery  is 
lawful,  this  case  must  be  determined  by  the  laws  of  the  country  in 
which  the  defendant  dwelt  when  he  came  to  the  hands  of  the  plain 
tiffs  ;  that  the  ordinance  of  1787,  having  proclaimed  that  slavery 
should  not  exist  there,  unless  under  two  exceptions,  the  plaintiff 
must  bring  the  defendant  under  either  of  them,  and  having  failed 
to  do  so,  must  have  their  claim  rejected.  Whenever  a  plaintiff 
demands,  by  suit,  that  a  person  whom  he  brings  into  court  as  a 
defendant,  and  thereby  admits  to  be  in  possession  of  his  freedom, 
should  be  declared  to  be  his  slave,  he  must  strictly  make  out  his 
case.  In  this,  if  any,  adore  non  probante  absolvitur  reus.  Here 
the  plaintiffs  have  failed  in  a  very  essential  point,  proof  of  the  al 
leged  slavery  of  the  defendant. 

Their  title  can  only  have  been  lawful  at  the  time  the  bill  of  sale 
produced  was  made,  on  two  grounds :  the  right  of  the  vendor,  or 
the  liability  of  the  object  of  the  sale,  must  have  been  absolute  or 
qualified.  Absolute,  viz  :  complete  ownership  and  slavery,  in  the 
sole  case  of  conviction  of  a  crime  by  which  freedom  was  forfeited. 
Qualified,  viz  :  the  right  of  reclaiming  and  conveying  the  defendant 
out  of  the  territory  into  one  of  the  original  states,  in  which  he  owed 
involuntary  servitude  or  labor.  This  qualified  right  could  only  ex 
ist  in  the  case  of  the  defendant's  escape.  Now,  it  cannot  be  con 
tended,  that  this  qualified  right  only  was  disposed  of;  that  which 
is  the  evident  object  of  the  sale,  is  the  absolute  right  to  have  and  to 
hold  during  the  natural  life,  and  to  dispose  as  they  please.  The 
conduct  of  the  plaintiffs  towards  the  defendant  shows,  that  it  was 
this  absolute  right  which  they  considered  themselves  as  the  purcha 
sers  of.  This  they  unlawfully  attempted  to  do,  and  did  successfully 
for  a  number  of  years  exercise,  till  the  defendant  sought  his  safety 


352  SLAVERY. 

in  flight.  Their  title  to  him,  if  it  exists,  must  be  grounded  on  his 
conviction  of  a  crime.  Now,  the  evidence  of  this  is  a  matter  of  re 
cord  ;  the  paper  must  be  produced  or  accounted  for.  The  parish 
court  erred  in  sustaining  the  plaintiff's  claim  ;  its  judgment  is, 
therefore,  annulled,  avoided,  and  reversed  ;  and  this  court  doth  or 
der,  adjudge,  and  decree,  that  there  be  judgment  for  the  defendant, 
with  costs. 

11 

THE  STATE  v.  LASSELLE.  July  T.  1820.     1  Blackford's  Indi 
ana  Rep.  60. 

Appeal  from  the  Knox  circuit  court.  Polly,  a  woman  of  color, 
"  was  brought  before  the  circuit  court  by  Lasselle,  in  obedience  to  a 
writ  of  habeas  COTPU8>  He  stated  in  his  return,  that  he  held  her  by 
state  of  In-  purchase  as  his  slave,  she  being  the  issue  of  a  colored  woman 
the^xpress  purchased  from  the  Indians  in  the  territory  northwest  of  the  river 
toerdconsti-  Ohio>  Previously  to  the  treatJ  °f  Granville,  and  cession  of  that 
tution.  territory  to  the  United  States.  The  court  below  remanded  the 
woman  to  the  custody  of  Lasselle. 

Per  Cur.  Scott,  J.  The  question  before  this  court  is  as  to  the 
legality  of  Lasselle's  claim  to  hold  Polly  as  his  slave.  This  ques 
tion  has  been  presented  before  us  with  an  elaborate  research  into 
the  origin  of  our  rights  and  privileges,  and  their  progress  until  the 
formation  of  our  state  government,  in  1816.  On  one  hand,  it  is 
contended,  that  by  the  ordinance  for  the  government  of  the  terri 
tory  northwest  of  the  river  Ohio,  and  by  the  constitution  of  Indi 
ana,  slavery  was,  and  is,  decidedly  excluded  from  this  state  ;  while, 
on  the  other  hand,  it  is  insisted,  that  by  the  act  of  cession  of  the 
state  of  Virginia,  and  by  the  ordinance  of  1787,  the  privilege  of 
holding  slaves  was  reserved  to  those  settlers  at  Kaskaskias  and(  St. 
Vincents,  and  the  neighboring  villages,  who,  prior  to  that  time,  had 
professed  to  be  citizens  of  Virginia  ;  and  that  they  had  a  vested 
right,  which  could  not  be  divested  by  any  provision  of  the  constitu 
tion.  In  deciding  this  case,  it  is  not  necessary  for  us  to  recur  to 
the  earliest  settlement  of  the  country,  and  inquire  what  rights  the 
first  emigrants  enjoyed,  as  citizens  of  Virginia  ;  or  what  privileges 
were  secured  to  them,  when  their  connection  with  that  state  was 
dissolved.  Whether  the  state  of  Virginia  intended,  by  consenting 
to  the  ordinance  of  1787,  to  emancipate  the  slaves  on  this  side  of 
the  Ohio  river,  or  whether,  by  the  reservation  alluded  to,  she  in 
tended  to  continue  the  privilege  of  holding  slaves  to  the  settlers 


OF  THE  EMANCIPATION  OF  SLAVES.  353 

then  in  the  country,  is  unimportant  in  the  present  case.  That  le- 
islative  authority,  uncontrolled  by  any  constitutional  provision, 
could  emancipate  slaves,  will  hardly  be  denied.  This  has  been 
done  in  several  of  the  states,  and  no  doubt  has  been  entertained, 
either  of  the  power  of  the  legislature  to  enact  such  a  statute,  or 
of  the  binding  force  and  efficacy  of  the  law  when  enacted.  By 
the  power  of  a  statute  an  estate,  may  be  made  to  cease,  in  the 
same  manner  as  if  the  party  possessing  it  were  dead.  A  man 
may,  by  statute,  be  made  an  heir,  who  could  not  otherwise  be  one. 
The  legislature  have  the  power  to  change  the  course  of  descents, 
so  as  to  cast  an  estate  upon  those  who,  otherwise,  could  never 
have  taken  it  by  inheritance.  This  doctrine  is  sanctioned  by  the 
authority  of  Coke,  Levintz,  Blackstone,  Bacon,  and  others  of  the 
first  respectability.  It  must  be  admitted,  that  a  convention,  chosen 
for  the  express  purpose,  and  vested  with  full  power,  to  form  a  con 
stitution  which  is  to  define,  limit,  and  control  the  powers  of  the 
legislature,  as  well  as  the  other  branches  of  the  government,  must 
possess  powers,  at  least  equal,  if  not  paramount,  to  those  of  any 
ordinary  legislative  body.  From  these  positions  it  clearly  follows, 
that  it  was  within  the  legitimate  powers  of  the  convention,  in  form 
ing  our  constitution,  to  prohibit  the  existence  of  slavery  in  the 
state  of  Indiana.  We  are,  then,  only  to  look  into  our  own  consti 
tution,  to  learn  the  nature  and  extent  of  our  civil  rights  ;  and  to 
that  instrument  alone  we  must  resort  for  a  decision  of  this  ques 
tion. 

In  the  first  article  of  the  constitution,  section  1st,  it  is  declared, 
"That  all  men  are  born  free  and  independent,  and  have  certain 
natural,  inherent,  and  unalienable  rights  ;  among  which  are,  the 
enjoying  and  defending  of  life  and  liberty,  and  of  acquiring,  posses 
sing,  and  protecting  property  ;  and  pursuing  and  obtaining  happi 
ness  and  safety."  Section  24th  of  the  same  article,  guards  against 
any  encroachment  on  those  rights,  and  provides  that  they  shall 
forever  remain  inviolable.  In  the  llth  article  of  that  instrument, 
section  7th,  it  is  declared,  that  "  There  shall  be  neither  slavery  nor 
involuntary  servitude  in  this  state,  otherwise  than  for  the  punishment  of 
crimes,  whereof  the  party  shall  have  been  duly  convicted."  It  is  evident 
that,  by  these  provisions,  the  framers  of  our  constitution  intended 
a  total  and  entire  prohibition  of  slavery  in  this  state  ;  and  we  can 
conceive  of  no  form  of  words  in  which  that  intention  could  have 
been  more  clearly  expressed.  We  are  told  that  the  constitution 
recognizes  pre-existing  rights,  which  are  to  continue,  as  if  no 
45 


354  SLAVERY. 

change  had  taken  place  in  the  government.  But  it  must  be  recol 
lected,  that  a  special  reservation  cannot  be  so  enlarged  by  con 
struction  as  to  defeat  a  general  provision. 

If  this  reservation  were  allowed  to  apply  in  this  case,  it  would 
contradict,  and  totally  destroy,  the  design  and  effect  of  this  part  of 
the  constitution.  And  it  cannot  be  presumed  that  the  constitution , 
which  is  the  collected  voice  of  the  citizens  of  Indiana,  declaring  their 
united  will,  would  guaranty  to  one  part  of  the  community  such  pri 
vileges  as  would  totally  defeat  and  destroy  privileges  and  rights 
guarantied  to  another.  From  these  premises  it  follows,  as  an  ir 
resistible  conclusion,  that,  under  our  present  form  of  government, 
slavery  can  have  no  existence  in  the  state  of  Indiana  ;  and,  of 
course,  the  claim  of  the  said  Lasselle  cannot  be  supported.  The 
judgment  is  reversed,  with  costs,  and  the  woman  discharged. 

12. 

GRIFFITH    v.    FANNY.       Dec.   T.    1820.       Gilmer's    Virginia 

Rep.  143. 

A  negro  Fanny  sued  Griffith,  in  forma  pauperis,  for  her  freedom,  in  the 
vitude  in  superior  court  of  law  for  Wood  county.  The  defendant  pleaded 
dehr°a  deed  "not  guilty,"  and  specially  that  Fanny  was  his  slave.  At  the  trial, 
^cutedin  t^e  jury  foun(j  by  a  special  verdict,  that  Fanny  was  the  slave  of  one 
a  citizen' of  Kincheloe,  until  a  short  time  before  the  23d  of  August,  1816.  Some 
' to  time  in  that  month  he  sold  her  to  William  Skinner,  a  citizen  resi- 

dent  in  tbe  state  of  Ohi°'  In  conformity  with  the  sale»  Kincheloe 
tutionof  delivered  possession  to  Skinner  at  Marietta  in  Ohio,  and  received 
the  purchase  money.  Griffith  was  present  at  this  sale  ;  and  on  the 
23d  of  August,  1816,  Kincheloe  executed  a  bill  of  sale  for  Fanny, 
to  Griffith,  which  bill  was  delivered  to  Skinner.  This  bill  was  an 
absolute  sale  of  Fanny  from  Kincheloe  to  Griffith,  who  was  at  the 
time,  and  continued  to  be,  a  citizen  of  Virginia.  The  agreement 
to  have  a  bill  of  sale  executed  to  Griffith,  was  between  him  and 
Skinner  ;  for  Kincheloe  was  not  party  to  their  contract,  though 
he  executed  the  deed.  At  the  time  of  its  execution,  Skinner 
stated  to  Kincheloe,  that  he  wished  the  bill  of  sale  to  be  to  Griffith, 
because  by  the  laws  of  Ohio  he  could  not  hold  a  slave  in  his  own  righf . 
Fanny  was  at  different  times  seen  at  Skinner's  residence  in  Ohio. 
She  was  last  seen  there,  in  the  spring  of  1818.  About  the  first  of 
Otcober  1818,  she  returned  to  Virginia,  where  she  was  taken  into 
the  possession  of  Griffith,  who  claimed  her  under  the  bill  of  sale. 
The  section  of  the  constitution  of  Ohio,  prohibiting  involuntary 


OF  THE  EMANCIPATION  OF  SLAVES.  355 

servitude,  was  inserted  into  the  verdict.     And  upon  these  facts, 
the  law  of  the  case  was  submitted  to  the  court,  which  gave  judg 
ment  for  the  pauper,  and  Griffith  appealed. 
By  the  court.     The  judgment  is  affirmed. 


WILSON  v.  ISBELL.     April  T.  1805.     5  Call's  Rep.  425. 

In  a  suit  for  freedom,  brought  by  Isbell,  who  had  been  a  slave  A  slave 
to  one  Whiting,  it  appeared  that  Whiting  had  moved  into  Mary-  Virginia 
land,  taking  Isbell  with  him,  and  remained  there  about  two  years, 


and  then  sold  her  to  Wilson,  who  brought  her  back  to  Virginia.  land-  an,d, 

0     .       there  sold, 

The  county  court  gave  judgment  for  the  defendant  ;  but  the  dis-  and  the 
trict  court  reversed  it,  on  the  ground  that  a  slave  born  in  the  state,  £"J^ 
and  carried  to  Maryland,  and  there  sold,  and  brought  back  by  the 


purchaser,  and  kept  on  his  plantation  more  than  one  year,  was  en-  year,  held, 

.  .  that    she 

titled  to  freedom.  was  free. 

Per  Cur.  Fleming,  J.  The  case  is  clearly  within  the  mischief 
which  was  intended  to  be  remedied  by  the  act  of  1778  ;  and  it 
makes  no  difference  that  the  slave  in  question  was  born  in  this 
state,  and  brought  back  by  a  citizen  of  this  commonwealth  ;  and 
that  her  former  master  afterwards  returned  and  resided  in  Virginia, 
For  he  had  carried  her  to  Maryland,  where  he  dwelt  for  several 
years,  and  then  sold  her  to  the  appellant,  who  imported  her  into 
this  state,  in  manifest  violation  of  the  express  declaration  of  the 
statute,  and  therefore  must  abide  the  consequences.  The  other 
judges  concurred,  and  the  judgment  was  affirmed. 

14 

A  negro 

RAWLINGS  v.  BOSTON.     May  T.  1793.     3  Har.   &  M'Henry's  adjudged 

T}          -ion  to  be*Vee 

Rep.    139.  being  des 

cended 

The  petitioner  claimed  his  freedom  as  being  a  descendant  from  fromaSPa- 

nish  wo- 

a  yellow  woman,  being  a  Portuguese,  named  Catharine  Boston,  man  whose 
The  county  court  found  the  petitioner  free.     The  defendant  ap-  th"ggrand- 
pealed  to  the  general  court,  which  gave  the  following  judgment  :  J{Jetheerti  ° 
"  It  being  admitted,  that  the  said  Anthony  Boston  is  a  descendant  tioner,  was 
of  Violet,  the  daughter  of  Linah,  the  daughter  of  Maria,  or  Marea,  the     state, 
and  it  appearing  to  the  court,  on  the  examination  of  depositions  ye?Io™as  °f 
>ken  in  this  case,  that  Maria,  or  Marea,  was  a  Spanish  woman,  and  pomPlex- 
iiat  her  daughter  Linah  was  born  before  she  came  into  Maryland,  long  black 
and  was  of  yellow  color  or  complexion,  with  long  black  hair,  the 


356  SLAVERY. 

court  are  of  opinion  that  the  said  Maria,  or  Marea,  was  not  a  slave, 
but  free  ;  therefore,  it  is  considered  by  the  court,  that  the  said 
Anthony  Boston  be  free  and  discharged  from  all  further  servitude, 
and  that  the  judgment  aforesaid  in  form  aforesaid  given,  be  in  all 
.  things  affirmed."  And  a  similar  judgment  was  given  in  Boston  v. 
Sprigg,  in  the  court  of  appeals,  Nov.  T.  1797. 

15. 

MERRY  v.  CHEXNAIDER.      March  T.  1830.     20  Martin's  Loui 
siana  Rep.  699. 

bornefn°the       ^  CuT'    Porter  J'     The  Pontiff  sues,  in  this  action,  to  recover 
Northwest-  his  freedom,  and  from  the  evidence  on  record,  is  clearly  entitled  to 
toiy  since    **•     **e  was  ^orn  *n  tne  north  western  territory,  since  the  enact- 
™6ncedof     ment  °f  ConSress»  in  1787»  of  the  ordinance  for  the  government 
1787,  is       of  that  country  f  according  to  the  6th  article  of  which  there  could 
be  therein  neither  slavery  nor  involuntary  servitude.     This  ordi 
nance  fixed,  forever,  the  character  of  the  population  in  the  region 
over  which  it  extended,  and  takes  away  all  foundation  from  the 
claim  set  up  in  this  instance,  by  the  defendant.     The  act  of  ces 
sion  by  Virginia,  did  not  deprive  congress  of  the  power  to  make 
such  a  regulation. 


(E.)    BY    THE    EFFECT    OF    DOMESTIC    LAWS. 

1 

BAPTIST  et  al  v.  DE   VOLUNBRUN.     June  T.  1820.     5  Har,  & 

Johns.  Rep.  86. 

The  court  held  that  the  act  of  1795,  prohibiting  the  importation 
™hjb?ting  of  slaves>  is  ^cable  only  to  voluntary  importations,  and  where 
the  impor-  the  importer  intends  to  sell  the  slaves,  or  to  reside  himself  in  the 

tation  01 

slaves  ap-    state.     As  where  the  owner  of  slaves  in  consequence  of  the  insur- 

FunTary  h£  Action  in  St.  Domingo,  is  obliged  to  fly  from  that  island  and  take 

portations.   up  a  temporary  abode  in  this  state  with  her  slaves  ;  or  where  she 

goes  first  to  New  York,  and  remains  there  five  years,  and  then,  in 

order  to  avoid  the  rigors  of  the  climate,  comes  with  them  in  this 

state,  the   court  held,   that  she  was  not  within  the  prohibition  of 

the  act ;  and  decided  on  an  application  for  freedom  by  the  slaves, 

that  they  were  not  entitled.    And  see  the  case  De  Fountaine  et  al 

v.  De  Fountaine.  5  Har.  &  Johns.  Rep.  99.  (note.) 


OF  THE  EMANCIPATION  OF  SLAVES.  357 

2. 

COMMONWEALTH  OF  MASSACHUSETTS  v.  THOMAS  AVES.  Aug. 

1836. 

Habeas  corpus  to  bring  up  the  body  of  a  negro  female  slave,  And  where 
named  Med.     Aves  returned  to  the  writ,  that  he  had  the  body  of  tationisvo- 
the  slave  in  his  custody,  that  one  Samuel  Slater,  of  the  city  of  New  an(j    for  a 
Orleans,  in  the  State  of  Louisiana  owned  the  slave  Med,  who  was  an  {f^J30^1^ 
infant  about  six  years  of  age,  and  also  the  mother  of  the  said  infant  slave  is 
slave.     And  that  he  held  the  mother  and  child  as  slaves,  under  the 
laws  of  Louisiana.     That  the  wife  of  Slater,  intending  to  visit  her 
parents  in  Boston,  brought  the  slave  Med  with  her  to  her  father's  the 
defendant's  house,  to  wait  upon  her,  and  for  atemporary  and  very 
short  time,  when  she  was  to  return  to  New  Orleans  with  the  slave, 
that  the  defendant,  the  father  of  the  said  Mrs.  Slater,  had  the  cus 
tody  of  the  child  during  a  temporary  absence  of  her  mistress  from 
the  city.     That  the  child  wished  to  return,  and  the  mother  of  the 
child  wished  and  expected  it  to  return,  &c. 

Shaw,  Ch.  J.  The  question  now  before  the  court  arises  upon 
a  return  to  a  habeas  corpus,  originally  issued  in  vacation,  by  Mr. 
Justice  Wilde,  for  the  purpose  of  bringing  up  the  person  of  a 
colored  child  named  Med,  and  instituting  a  legal  inquiry  into  the 
fact  of  her  detention,  and  the  causes  for  which  she  was  detained. 
By  tha  provisions  of  the  revised  code,  the  practice  upon  habeas 
corpus  is  somewhat  altered.  In  case  the  party  complaining,  or  in 
behalf  of  whom  complaint  is  made,  on  the  ground  of  unlawful  im 
prisonment,  is  not  in  the  custody  of  an  officer,  as  of  a  sheriff  or 
deputy,  or  corresponding  officer  of  the  U.  S.,  the  writ  is  directed 
to  the  sheriff,  requiring  him  or  his  deputy  to  take  the  body  of  the 
person  thus  complaining,  or  in  behalf  of  whom  complaint  is  thus 
made,  and  have  him  before  the  court  or  magistrate  issuing  the 
writ,  and  to  summon  the  party  alleged  to  have  or  claim  the  cus 
tody  of  such  person,  to  appear  at  the  same  time,  and  show  the 
cause  of  the  detention.  The  person  thus  summoned  is  to  make  a 
statement  under  oath,  setting  forth  all  the  facts  fully  and  parti 
cularly  ;  and  in  case  he  claims  the  custody  of  such  party,  the 
grounds  of  such  claim  must  be  fully  set  forth.  This  statement  is 
in  the  nature  of  a  return  to  the  writ,  as  made  under  the  former 
practice,  and  will  usually  present  the  material  facts  upon  which 


358  SLAVERY. 

the  questions  arise.  Such  return,  however,  is  not  conclusive  of 
the  facts  stated  in  it ;  but  the  court  is  to  proceed  and  inquire  into 
all  the  alleged  causes  of  detention,  and  decide  upon  them  in  a 
summary  manner.  But  the  court  may,  if  occasion  require  it,  ad 
journ  the  examination,  and  in  the  mean  time  bail  the  party,  or  com 
mit  him  to  a  general  or  special  custody,  as  the  age,  health,  sex, 
and  other  circumstances  of  the  case  may  require.  It  is  further 
provided  that  when  the  writ  is  issued  by  one  judge  of  the  court 
in  vacation,  and  in  the  mean  time,  before  a  final  decision,  the 
court  shall  meet  in  the  same  county,  the  proceedings  may  be  ad 
journed  into  the  court,  and  there  be  conducted  to  a  final  issue,  in 
the  same  manner  as  if  they  had  been  originally  commenced  by  a 
writ  issued  from  the  court.  I  have  stated  these  provisions  the 
more  minutely,  because  there  have  been  as  yet  but  few  proceed 
ings  under  the  revised  statutes,  and  the  practice  is  yet  to  be  estab 
lished. 

Upon  the  return  of  this  writ  before  Mr.  Justice  Wilde,  a  state 
ment  was  made  by  Mr.  Aves,  the  respondent ;  the  case  was  then 
postponed.  It  has  since  been  fully  and  very  ably  argued  before 
all  the  judges,  and  is  now  transferred  to  and  entered  in  court,  and 
stands  here  for  judgment,  in  the  same  manner  as  if  the  writ  had 
been  originally  returnable  in  court. 

The  return  of  Mr.  Aves  states,  that  he  has  the  body  of  the  color 
ed  child  described,  in  his  custody,  and  produces  her.  It  further 
states,  that  Samuel  Slater,  a  merchant,  citizen  and  resident  in  the 
city  of  New-Orleans  and  state  of  Louisiana,  purchased  the  child 
with  her  mother  in  1833,  the  mother  and  child  being  then  and 
long  before  slaves  by  the  laws  of  Louisiana  ;  that  they  continued 
to  be  his  property,  in  his  service,  at  New-Orleans,  till  about  the 
first  of  May  last,  when  Mary  Slater,  his  wife,  the  daughter  of  Mr. 
Aves,  left  New  Orleans  for  Boston,  for  the  purpose  of  visiting  her 
father,  intending  to  return  to  New  Orleans  after  an  absence  of  four 
or  five  months  ;  that  the  mother  of  the  child  remained  at  New  Or 
leans  in  a  state  of  slavery,  but  that  Mrs.  Slater  brought  the  child 
with  her  from  New  Orleans  to  Boston,  having  the  child  in  her 
custody  as  the  agent  and  representative  of  her  husband,  whose 
slave  the  child  was,  by  the  laws  of  Louisiana,  when  the  child  was 
brought  thence  ;  the  object,  intent,  and  purpose  of  the  said  Mary 
Slater  being  to  have  the  said  child  accompany  her,  and  remain 
in  her  custody,  and  under  her  care  during  her  temporary  absence 


OF  THE  EiMANCIPATION  OF  SLAVES.  359 

from  New  Orleans,  and  that  the  said  child  should  return  with  her 
to  New  Orleans,  the  domicil  of  herself  and  her  husband  ;  that  the 
said  child  was  confided  to  the  custody  and  care  of  said  Aves  by 
Mrs.  Slater,  during  her  temporary  absence  in  the  country  for  her 
health.  The  respondent  concludes  by  stating,  that  he  has  exer 
cised  no  other  restraint  over  the  liberty  of  this  child  than  such  as 
was  necessary  to  the  health  and  safety  of  the  child.  Notice  hav 
ing  been  given  to  Mr.  and  Mrs.  Slater,  an  appearance  has  been 
entered  for  them,  and  in  this  state  of  the  case  and  of  the  parties, 
the  cause  has  been  heard.  Some  evidence  was  given  at  the 
former  hearing,  but  it  does  not  materially  vary  the  facts  stated  in 
the  return.  The  fact  testified,  which  was  considered  most  material 
was,  the  declared  intent  of  Mrs.  Slaver  to  take  the  child  back  to 
New  Orleans.  But  as  that  intent  is  distinctly  avowed  in  the  re 
turn,  that  is,  to  take  the  child  back  to  New  Orleans,  if  it  could  be 
lawfully  done,  it  does  not  essentially  change  the  case  made  by  the 
return. 

This  return  is  now  to  be  considered  in  the  same  aspect  as  if 
made  by  Mr.  Slater.  It  is  made  in  fact  by  Mr.  Aves  claiming  the 
custody  of  a  slave  in  right  of  Mr.  Slater,  and  that  claim  is  sanc 
tioned  by  Mr.  Slater  who  appears  by  his  attorney  to  maintain  and 
enforce  it.  He  claims  to  have  the  child  as  master,  and  carry  her 
back  to  New  Orleans ;  and  whether  the  claim  has  been  made  in 
terms  or  not  to  hold  and  return  her  as  a  slave,  that  intent  is  ma 
nifest,  and  the  argument  has  very  properly  placed  the  claim  upon 
that  ground. 

The  case  presents  an  extremely  interesting  question,  not  so 
much  on  account  of  any  doubt  or  difficulty  attending  it,  as  on 
account  of  its  important  consequences  to  those  who  may  be  af 
fected  by  it,  either  as  masters  or  slaves. 

The  precise  question  presented  by  the  claim  of  the  respondent 
is,  whether  a  citizen  of  any  one  of  the  United  States,  where  negro 
slavery  is  established  by  law,  coming  into  this  state,  for  any  tem 
porary  purpose  of  business  or  pleasure,  staying  some  time,  but  not 
acquiring  a  domicil  here,  who  brings  a  slave  with  him  as  a  per 
sonal  attendant,  may  restrain  such  slave  of  his  liberty  during  his 
continuance  here,  and  convey  him  out  of  this  state  on  his  return, 
against  his  consent.  It  is  not  contended  that  a  master  can  exer 
cise  here  any  other  of  the  rights  of  a  slave  owner,  than  such  as 


360  SLAVERY. 

may  be  necessary  to  retain  the  custody  of  the  slave  during  his  re 
sidence,  and  to  remove  him  on  his  return. 

Until  this  discussion,  1  had  supposed  that  there  had  been  ad- 
.  judged  cases  on  this  subject  in  this  commonwealth  ;  and  it  is  be 
lieved  to  have  been  a  prevalent  opinion  among  lawyers,  that  if  a 
slave  is  brought  voluntarily  and  unnecessarily  within  the  limits  of 
this  state,  he  becomes  free,  if  he  chooses  to  avail  himself  of  the  pro 
visions  of  our  laws  ;  not  so  much  because  his  coming  within  our 
territorial  limits,  breathing  our  air,  or  treading  on  our  soil,  works 
any  alteration  in  his  status,  or  condition,  as  settled  by  the  law  of 
his  domicil,  as  because  by  the  operation  of  our  laws,  there  is  no 
authority  on  the  part  of  the  master,  either  to  restrain  the  slave  of 
his  liberty,  whilst  here,  or  forcibly  to  take  him  into  custody  in 
order  to  his  removal.  There  seems,  however,  to  be  no  decided 
case  on  the  subject  reported. 

It  is  now  to  be  considered  as  an  established  rule,  that  by  the 
constitution  and  laws  of  this  commonwealth,  before  the  adoption 
of  the  constitution  of  the  United  States,  in  1789,  slavery  was  abo 
lished,  as  being  contrary  to  the  principles  of  justice,  and  of  nature, 
and  repugnant  to  the  provisions  of  the  declaration  of  rights, 
which  is  a  component  part  of  the  constitution  of  the  state. 

It  is  not  easy,  without  more  time  for  historical  research  than  I 
now  have,  to  show  the  course  of  slavery  in  Massachusetts.  By  a 
very  early  colonial  ordinance,  (1641,)  it  was  ordered,  that  there 
should  be  no  bond  slavery,  villeinage,  or  captivity  amongst  us, 
with  the  exeption  of  lawful  captives  taken  in  just  wars,  or  those 
judicially  sentenced  to  servitude,  as  a  punishment  for  crime.  And 
by  an  act  a  few  years  after,  (1646)  manifestly  alluding  to  some 
transaction  then  recent,  the  general  court  conceiving  themselves 
bound  to  bear  witness  against  the  heinous  and  crying  sin  of  man 
stealing,  &c.,  ordered  that  certain  negroes  be  sent  back  to  their 
native  country  (Guinea)  at  the  charge  of  the  country,  with  a  letter 
from  the  governor  expressive  pf  the  indignation  of  the  court 
thereabouts.  See  Ancient  Charters,  &c.  52.  chap.  12.  sections 

2,  3. 

But  notwithstanding  these  strong  impressions  in  the  acts  of  the 
colonial  government,  slavery  to  a  certain  extent  seems  to  have 
crept  in  ;  not  probably  by  force  of  any  law,  for  none  such  is  found 
or  known  to  exist ;  but  rather  it  may  be  presumed,  from  that  uni 
versal  custom,  prevailing  through  the  European  colonies,  in  the 


OF  THE  EMANCIPATION  OF  SLAVES.  361 

West  Indies,  and  on  the  continent  of  America,  and  which  was  fos 
tered  and  encouraged  by  the  commercial  policy  of  the  parent 
states.  That  it  was  so  established,  is  shown  by  this,  that  by  several 
provincial  acts  passed  at  various  times,  in  the  early  part  of  the 
last  century,  slavery  was  recognized  as  existing  in  fact,  and  various 
regulations  were  prescribed  in  reference  to  it.  The  act  passed 
June,  1703,  imposed  certain  restrictions  upon  manumission,  and 
subjected  the  master  to  the  relief  and  support  of  the  slaves,  not 
withstanding  such  manumision,  if  the  regulations  were  not  com 
plied  with.  The  act  of  October,  1705,  levied  a  duty,  and  imposed 
various  restrictions  upon  the  importation  of  negroes,  and  allowed 
a  drawback  upon  any  negro  thus  imported,  and  for  whom  the  duty 
had  been  paid,  if  exported  within  the  space  of  twelve  months  and 
bona  fide  sold  in  any  other  plantation. 

How,  or  by  what  act  particularly,  slavery  was  abolished  in  Mas- 
sachusets,  whether  by  the  adoption  of  the  opinion  in  Sommersett's 
case,  as  a  declaration  and  modification  of  the  common  law,  or  by 
the  declaration  of  independence,  or  by  the  constitution  of  1780, 
it  .is  not  now  very  easy  to  determine,  and  it  is  rather  a  matter  of 
curiosity  than  of  utility  ;  it  geing  agreed  on  all  hands  that  if  not 
abolished  before,  it  was  so  by  the  declaration  of  rights.  In  the  case 
of  Winchendon  v.  Hatfield,  4  Mass.  Rep.  123.,  which  was  a  case 
between  two  towns  respecting  the  support  of  a  pauper,  Chief  Jus 
tice  Parsons,  in  giving  the  opinion  of  the  court,  states,  that  of  the 
first  action  which  came  before  the  court  after  the  establishment  of 
the  constitution,  the  judges  declared,  that  by  virtue  of  the  decla 
ration  of  rights,  slavery  in  this  state  was  no  more.  And  he  men 
tions  another  case,  Littleton  v.  Tuttle,  4  Mass  R.  128.,  note,  in 
which  was  stated  as  the  unanimous  opinion  of  the  court,  that  a 
negro  born  within  the  state,  before  the  constitution,  Was  born 
free,  though  born  of  a  female  slave.  The  chief  justice,  however, 
states,  that  the  general  practice  and  common  usage  have  been  op 
posed  to  this  opinion. 

It  has  recently  been  stated  as  a  fact,  that  there  were  judicial 
decisions  in  this  state  prior  to  the  adoption  of  the  present  consti 
tution,  holding  that  negroes  born  here  of  slave  parents  were  free, 
A  fact  is  stated  in  the  above  opinion  of  Chief  Justice  Parsons, 
which  may  account  for  this  suggestion.  He  states,  that  several 
negroes,  born  in  this  country,  of  imported  slaves,  had  demanded 
their  freedom  of  their  masters  by  suits  of  law,  and  obtained  it  by 
46 


362  SLAVERY. 

a  judgment  of  court.  The  defence  of  a  master,  he  says,  was  faint 
ly  made,  for  such  was  the  temper  of  the  times,  that  a  restless,  dis 
contented  slave  was  worth  little,  and  when  his  freedom  was  obtain- 
ed  in  a  course  of  legal  proceedings,  his  master  was  not  holden  for 
his  support,  if  he  became  poor.  It  is  very  probable,  therefore, 
that  this  surmise  is  correct,  and  that  records  of  judgment  to  this 
effect  may  be  found  ;  but  they  would  throw  very  little  light  on 
the  subject. 

Without  pursuing  this  inquiry  farther,  it  is  sufficient  for  the  pur 
poses  of  the  case  before  us,  that  by  the  constitution  adopted  in  1780, 
slavery  was  abolished  in  Massachusetts,  upon  the  ground  that  it  is 
contrary  to  natural  right  and  the  plain  principles  of  justice.  The 
terms  of  the  first  article  of  the  declaration  of  rights  are  plain  and 
explicit:  "  All  men  are  born  free  and  equal,  and  have  certain 
natural,  essential,  and  unalienable  rights,  among  which  are,  the 
right  of  enjoying  and  defending  their  lives  and  liberties,  that  of 
acquiring,  possessing,  and  protecting  property."  It  would  be  dif 
ficult  to  select  words  more  precisely  adapted  to  the  abolition  of 
negro  slavery.  According  to  the  laws  prevailing  in  all  the  states 
where  slavery  is  upheld,  the  child  of  a  slave  is  not  deemed  to  be 
born  free,  a  slave  has  no  right  to  enjoy  and  defend  his  own  liberty, 
or  to  acquire,  possess,  or  protect  property.  That  the  description  was 
broad  enough  in  its  terms  to  embrace  negroes,  and  that  it  was  in 
tended  by  the  framers  of  the  constitution  to  embrace  them,  is  prov 
ed  by  the  earliest  contemporaneous  construction,  by  an  unbroken 
series  of  judicial  decisions,  and  by  a  uniform  practice  from  the 
adoption  of  the  constitution  to  the  present  time.  The  whole  tenor 
of  our  policy,  of  our  legislation  and  jurisprudence,  from  that  time 
to  the  present,  has  been  consistent  with  this  construction,  and  with 
no  other. 

Such  being  the  general  rule  of  law,  it  becomes  necessary  to  in 
quire  how  far  it  is  modified  or  controlled  in  its  operation  ;  either, 

1.  By  the  law  of  other  nations  and  states,  as  admitted  by  the 
comity  of  nations  to  have  a  limited  operation  within  a  particular 
state ;  or 

2.  By  the  constitution  and  laws  of  the  United  States. 

In  considering  the  first,  we  may  assume  that  the  law  of  this  state 
is  analogous  to  the  law  of  England,  in  this  respect;  that  while 
slavery  is  considered  as  unlawful  and  inadmissible  in  both,  and 
this  because  contrary  to  natural  right  and  to  laws  designed  for  the 


OF  THE  EMANCIPATION  OF  SLAVES.  3C3 

security  of  personal  liberty,  yet  in  both,  the  existence  of  slavery 
in  other  countries  is  recognized,  and  the  claims  of  foreigners, 
growing  out  of  that  condition,  are  to  a  certain  extent,  respected* 
Almost  the  only  reason  assigned  by  Lord  Mansfield  in  Sommer- 
sett's  case  was,  that  slavery  is  of  such  a  nature  that  it  is  incapable 
of  being  introduced  on  any  reasons  moral  or  political,  but  only  by 
positive  law  ;  and,  it  is  so  odious,  that  nothing  can  be  suffered  to 
report  it  but  positive  law. 

The  same  doctrine  is  clearly  stated  in  the  full  and  able  opinion 
of  Marshall  Ch.  J.,  in  the  case  of  the  Antelope.  10  Wheat.  120. 
He  is  speaking  of  the  slave  trade,  but  the  remark  itself  shows  that 
it  applies  to  the  state  of  slavery.  "  That  it  is  contrary  to  the  law 
of  nature  will  scarcely  be  denied.  That  every  man  has  a  natural 
right  to  the  fruits  of  his  own  labor  is  generally  admitted,  and  that 
no  other  pe.>:on  can  rightfully  deprive  him  of  those  fruits,  and  ap 
propriate  them  against  his  will,  seems  to  be  the  necessary  result 
of  the  admission." 

But  although  slavery  and  the  slave  trade  are  deemed  contrary 
to  natural  right,  yet  it  is  settled  by  the  judicial  decisions  of  this 
country  and  of  England,  that  it  is  not  contrary  to  the  law  of  na 
tions.  The  authorities  are  cited  in  the  case  of  the  Antelope,  and 
that  case  is  itself  an  authority  directly  in  point.  The  consequence 
is,  that  each  independent  community,  in  its  intercourse  with  every 
other,  is  bound  to  act  on  the  principle,  that  such  other  country  has 
a  full  and  perfect  authority  to  make  such  laws  for  the  government 
of  its  own  objects,  as  its  own  judgment  shall  dictate,  and  its  own 
conscience  approve,  provided,  the  same  are  consistent  with  the  law 
of  nations  ;  and  no  independent  community  has  any  right  to  in 
terfere  with  the  acts  or  conduct  of  another  state,  within  the  terri 
tories  of  such  state,  or  on  the  high  seas,  which  each  has  an  equal 
right  to  use  and  occupy  ;  and  that  each  sovereign  state,  governed 
by  its  own  laws,  although  competent  and  well  authorized  to  make 
such  laws  as  it  may  think  most  expedient  to  the  extent  of  its  own 
territorial  limits,  and  for  the  government  of  its  own  subjects,  yet 
beyond  those  limits,  and  over  those  who  are  not  her  own  subjects, 
has  no  authority  to  enforce  her  own  laws,  or  to  treat  the  laws  of 
other  states  as  void,  although  contrary  to  its  own  views  of  morality. 

This  view  seems  consistent  with  most  of  the  leading  cases  on  the 
subject. 
Sommersett's  case,  20  HowelPs  State  Trials,  1.,  as  already  cited, 


3G4  SLAVERY. 

decides  that  slavery,  being  odious  and  against  natural  right,  can 
not  exist,  except  by  force  of  positive  law.  But  it  clearly  admits, 
that  it  may  exist  by  force  of  positive  law.  And  it  may  be  remark 
ed,  that  by  positive  law  in  this  connection,  may  be  as  well  under 
stood  customary  law  as  the  enactment  of  a  statute  ;  and  the  word 
is  used  to  designate  rules  established  by  tacit  acquiescence  or  by 
the  legislative  act  of  any  state,  and  which  derive  their  force  and 
authority  from  such  acquiescence  or  enactment,  and  not  because 
they  are  the  dictates  of  natural  justice,  and  as  such,  of  universal 
obligation. 

The  Louis,  2  Dodson's  Rep.  238.  This  was  an  elaborate  opinion 
of  Sir  Wm.  Scott.  It  was  the  case  of  a  French  vessel  seized  by 
an  English  vessel  in  time  of  peace,  whilst  engaged  in  the  slave 
trade.  It  proceeded  upon  the  ground  that  a  right  of  visitation  by 
the  vessels  of  one  nation,  of  the  vessels  of  another,  could  only  be 
exercised  in  time  of  war,  or  against  pirates,  and  that  the  slave 
trade  was  not  piracy  by  the  laws  of  nations,  except  against  those 
by  whose  government  it  has  been  so  declared  by  law  or  by  treaty. 
And  the  vessel  was  delivered  up. 

The  Amedis,  I  Acton's  Rep.  240.  The  judgment  of  Sir  Wm. 
Grant  in  this  case,  upon  the  point  on  which  the  case  was  decided, 
that  of  the  burden  of  proof,  has  been  doubted.  But  upon  the 
point  now  under  discussion,  he  says,  but  we  do  not  lay  down  as  a 
general  principle,  that  this  is  a  trade  which  cannot,  abstractedly 
speaking,  be  said  to  have  a  legitimate  existence.  I  say  abstract 
edly  speaking,  because  we  cannot  legislate  for  other  countries ; 
nor  has  this  country  a  right  to  control  any  foreign  legislature  that 
may  give  permission  to  its  subjects  to  prosecute  this  trade.  He 
however  held,  in  consequence  of  the  principles  declared  by  the 
British  government,  that  he  was  bound  to  hold,  prima  facie,  that 
the  traffic  was  unlawful,  and  threw  on  the  claimant  the  burden  of 
proof,  that  the  traffic  was  permitted  by  the  law  of  his  own  country. 

The  Diana,  1  Dodson,  95.  This  case  strongly  corroborates 
the  general  principle,  that  though  the  slave  trade  is  contrary  to  the 
principles  of  justice  and  humanity,  it  cannot  with  truth  be  said, 
that  it  is  contrary  to  the  laws  of  all  civilized  nations  ;  and  that 
courts  will  respect  the  property  of  persons  engaged  in  it,  under 
the  sanction  of  the  laws  of  their  own  country. 

Two  cases  are  cited  from  the  decisions  of  courts  of  common 
law,  which  throw  much  light  upon  the  subject. 


OF  THE  EMANCIPATION  OF  SLAVES.  365 

Madrazo  v.  Willis.  3  B.  and  Aid.  353.  It  was  an  action 
brought  by  a  Spaniard  against  a  British  subject,  who  had  unlaw 
fully  and  without  justifiable  cause,  captured  a  ship  with  three  hun 
dred  slaves  on  bord.  The  only  question  was  the  amount  of  dam 
ages.  Abbott,  Ch.  J.,  who  tried  the  cause,  in  reference  to  the  very 
strong  language  of  the  acts  of  parliament,  declaring  the  traffic  in 
slaves  a  violation  of  right,  and  contrary  to  the  first  principles  of 
justice  and  humanity,  doubted  whether  the  owner  could  recover 
damages,  in  an  English  court  of  justice,  for  the  value  of  the 
slaves  as  property,  and  directed  the  ship  and  the  slaves  to  be  sepa 
rately  valued.  On  further  consideration  he  and  the  whole  court 
were  of  opinion,  that  the  plaintiff  was  entitled  to  recover  for  the 
value  of  the  slaves.  That  opinion  went  upon  the  ground  that  the 
traffic  in  slaves,  however  wrong  in  itself,  if  prosecuted  by  a  Span 
iard  between  Spain  and  the  coast  of  Africa,  and  if  permitted  by 
the  laws  of  Spain,  and  not  restrained  by  treaty,  could  not  be  law 
fully  interrupted  by  a  British  subject  on  the  high  seas,  the  com 
mon  highway  of  nations.  And  Mr.  Justice  Baylay,  in  his  opinion, 
after  stating  the  general  rule  that  a  foreigner  is  entitled,  in  a  Brit 
ish  court  of  justice,  to  compensation  for  a  wrongful  act,  added, 
that  although  the  language  used  by  the  statutes  was  very  strong, 
yet  it  could  only  apply  to  British  subjects.  It  is  true,  he 
further  says,  that  if  this  were  a  trade  contrary  to  the  law  of 
nations,  a  foreigner  could  not  maintain  this  action.  And  Best,  J. 
spoke  strongly  to  the  same  effect,  adding  that  the  statutes  speak 
in  just  terms  of  indignation  of  the  horrible  traffic  in  human  beings; 
but  they  speak  only  in  the  name  of  the  British  nation.  If  a  ship 
be  acting  contrary  to  the  general  law  of  nations,  she  is  thereby 
subject  to  confiscation  ;  but  it  is  impossible  to  say  that  the  slave 
trade  is  contrary  to  what  may  be  called  the  common  law  of  nations. 
Forbes  v.  Cochrane,  2  Barn.  &  Cressw.  448 ;  SDowl.  &  Ryl.  679. 
This  case  has  been  supposed  to  conflict  with  the  one  last  cited  ; 
but  I  apprehend,  in  considering  the  principles  upon  which  they 
were  decided,  they  will  be  found  to  be  perfectly  reconcilable. 
The  plaintiff  a  British  subject,  domiciled  in  East  Florida,  where 
slavery  was  established  by  law,  was  the  owner  of  a  plantation  and 
of  certain  slaves,  who  escaped  thence  and  got  on  board  a  British 
ship  of  war  on  the  high  seas.  It  was  held,  that  he  could  not  main 
tain  an  action  against  the  master  of  the  ship  for  harboring  the  slaves 
after  notice  and  demand  of  them.  Some  of  the  opinions  given  in 


366  SLAVERY. 

this  case  are  extremely  instructive  and  applicable  to  the  present. 
Holroyd,  J.,  in  giving  his  opinion,  said,  that  the  plaintiff  could  not 
found  his  claim  to  the  slaves  upon  any  general  right,  because  by 
the  English  laws  such  a  right  cannot  be  considered  as  warranted 
by  the  general  law  of  nature,  that  if  the  plaintiff  could  claim  at  all, 
it  must  be  in  virtue  of  some  right,  which  he  had  acquired  by  the 
law  of  the  country  where  he  was  domiciled,  that  when  such  rights 
are  recognized  by  law,  they  must  be  considered  as  founded,  not 
upon  the  law  of  nature,  but  upon  the  particular  law  of  that  coun 
try,  and  must  be  co-extensive  with  the  territories  of  that  state  ; 
that  if  such  right  were  violated  by  a  British  subject,  within  such 
territory  the  party  grieved  would  be  entitled  to  a  remedy;  but  that 
the  law  of  slavery  is  a  law  in  invitum,  and  when  a  party  gets  out  of 
the  territory  where  it  prevails,  and  under  the  protection  of  another 
power,  without  any  wrongful  act  done  by  the  party  giving  that 
protection,  the  right  of  the  master,  which  founded  on  the  munici 
pal  law  of  the  place  only,  does  not  continue.  So  in  speaking  of 
the  effect  of  bringing  a  slave  into  England,  he  says,  he  ceases  to  be 
a  slave  in  England,  only  because  there  is  no  law,  which  sanctions 
his  detention  in  slavery.  Best,  J.,  declared  his  opinion  to  the  same 
effect.  Slavery  is  a  local  law,  therefore  if  a  man  wishes  to  pre 
serve  his  slaves,  let  them  attach  them  to  him  by  affection,  or  make 
fast  the  bars  of  their  prison,  or  rivet  well  ther  chains,  for  the  in 
stant  they  get  beyond  the  limits  where  slavery  is  recognized  by  the 
local  law,  they  have  broken  their  chains — they  have  escaped  from 
their  prison,  and  are  free. 

That  slavery  is  a  relation  founded  in  force,  not  in  right,  existing, 
where  it  does  exist,  by  force  of  positive  law,  and  not  recognized  as 
founded  in  natural  right,  is  intimated  by  the  definition  of  slavery  in 
the  civil  law :  "  Servitus  est  constitutio  juris  gentium,  qua  quis  dominio 
alieno  contra  naturam  subjicitur." 

Upon  a  general  review  of  the  authorities,  and  upon  an  applica 
tion  of  the  well  established  principles  upon  this  subject,  we  think 
they  fully  maintain  the  point  stated,  that  though  slavery  is  contrary  to 
natural  right,  to  the  principles  of  justice,  humanity,  and  sound 
policy,  as  we  adopt  them,  and  found  our  own  laws  upon  them,  yet 
not  being  contrary  to  the  laws  of  nations,  if  any  other  state  or 
community  see  fit  to  establish  and  continue  slavery  by  law,  so  far 
as  the  legislative  power  of  that  country  extends,  we  are  bound  to 
take  notice  of  the  existence  of  those  laws,  and  we  are  not  at  liberty 
to  declare  and  hold  an  act  done  within  those  limits,  unlawful 


OF  THE  EMANCIPATION  OF  SLAVES.  367 

and  void,  upon  our  views  of  morality  and  policy,  which  the  sove 
reign  and  legislative  power  of  the  place  has  pronounced  to  be 
lawful.  If,  therefore,  an  unwarranted  interference  and  wrong  is 
done  by  our  citizens  to  a  foreigner,  acting  under  the  sanction  of 
such  laws,  and  within  their  proper  limits,  that  is,  within  the  local 
limits  of  the  power  by  whom  they  are  thus  established,,  or  on  the 
high  seas,  which  each  and  every  nation  has  a  right  in  common  with 
all  others  to  occupy,  our  laws  would  no  doubt  afford  a  remedy 
against  the  wrong  done.  So,  in  pursuance  of  a  well  known  maxim, 
that  in  the  construction  of  contracts,  the  lex  loci  contractus  shall 
govern,  if  a  person,  having  in  other  respects,  a  right  to  sue  in  our 
courts,  shall  bring  an  action  against  another,  liable  in  other  respects 
to  be  sued  in  our  courts,  upon  a  contract  made  upon  the  subject  of 
slavery  in  a  state  where  slavery  is  allowed  by  law,  the  law  here 
would  give  it  effect.  As  if  a  note  of  hand  made  in  New-Orleans 
were  sued  on  here,  and  the  defence  should  be  that  it  was  on  a  bad 
consideration,  or,  without  consideration,  because  given  for  the  price 
of  a  slave  sold,  it  may  well  be  admitted  that  such  a  defence  could 
not  prevail,  because  the  contract  was  a  legal  one  by  the  law  of  the 
place  where  it  was  made. 

This  view  of  the  law  applicable  to  slavery,  marks  strongly  the  dis 
tinction  between  the  relation  of  master  and  slave  as  established  by  the 
local  law  of  particularstates,  and  in  virtue  of  that  sovereign  power  and 
independent  authority,  which  each  independent  state  concedes  to 
every  other,  and  those  natural  and  social  relations  which  are  every 
where  and  by  all  people  recognized,  and  which,  though  they  may 
be  modified  and  regulated  by  municipal  law,  are  not  founded  upon 
it,  such  as  the  relation  of  parent  and  child,  and  husband  and  wife. 
Such,  also,  is  the  principle  upon  which  the  general  right  of  property 
is  founded,  being  in  some  form  universally  recognized  as  a  natural 
right,  independently  of  municipal  law. 

This  affords  an  answer  to  the  argument  drawn  from  the  maxim, 
that  the  right  of  personal  property  follows  the  person,  and,  there 
fore,  where  by  the  law  of  a  place,  a  person  there  domiciled  ac 
quires  personal  property,  by  the  comity  of  nations,  the  same  must 
be  deemed  his  property  every  where.  It  is  obvious,  that  if  this 
were  true,  in  the  extent  in  which  the  argument  employs  it,  if  slavery 
exists  any  where,  and  if  by  the  laws  of  any  place  a  property  can 
be  acquired  in  slaves,  the  law  of  slavery  must  extend  to  every 
place  where  such  slaves  may  be  carried.  The  maxim,  therefore, 
and  the  argument  can  apply  only  to  those  commodities  which  are 


368  SLAVERY. 

every  where,  and  by  all  nations,  treated  and  deemed  subjects  of 
property.  But  it  is  not  speaking  with  strict  accuracy  to  say,  that 
a  property  can  be  acquired  in  human  beings,  by  local  laws.  Each 
state  may,  for  its  own  convenience,  declare  that  slaves  shall  be 
deemed  property,  and  that  the  relations  and  laws  of  personal  chat 
tels  shall  be  deemed  to  apply  to  them  ;  as,  for  instance,  that  they 
may  be  bought  and  sold,  delivered,  attached,  levied  upon,  that  tres 
pass  will  lie  for  an  injury  done  to  them,  or  trover  for  converting 
them.  But  it  would  be  a  perversion  of  terms  to  say,  that  such 
local  laws  do  in  fact  make  them  personal  property  generally  ;  they 
can  only  determine,  that  the  same  rules  of  law  shall  apply  to  them 
as  are  applicable  to  property,  and  this  effect  will  follow  only  so  far 
as  such  laws  proprio  vigore  can  operate. 

The   same  doctrine  is    recognized  in  Louisiana.     In  the  case  of 
Lunsford  v.  Coquillon,  14  Martin's  Rep.  404.,  it  is  thus  stated: — 
The  relation  of  owner  and   slave  in  the  states  of  this   union,  in 
which  it  has  a  legal  existence,  is  a  creature  of  the  municipal  law. 
See  Story's  Conflict  of  Laws,  92.  97. 

The  same  principle  is  declared  by  the  court  in  Kentucky,  in  the 
case  ofRankinv.  Lydia,  3  Marshall's  Rep.  470.  They  say,  slavery  is 
sanctioned  by  the  laws  of  this  state  ;  but  we  consider  this  as  a 
right  existing  by  positive  law  of  a  municipal  character,  without 
foundation  in  the  law  of  nature. 

The  conclusion  to  which  we  come  from  this  view  of  the  law  is 
this : — 

That  by  the  general  and  now  well  established  law  of  this  Com 
monwealth,  bond  slavery  cannot  exist,  because  it  is  contrary  to 
natural  right,  and  repugnant  to  numerous  provisions  of  the  consti 
tution  and  laws,  designed  to  secure  the  liberty  and  personal  rights 
of  all  persons  within  its  limits  and  entitled  to  the  protection  of  the 
laws. 

That  though  by  the  laws  of  a  foreign  state,  meaning  by  "  foreign" 
in  this  connection,  a  state  governed  by  its  own  laws,  and  between 
which  and  our  own,  there  is  no  dependence  one  upon  the  other, 
but  which  in  this  respect  are  as  independent  as  foreign  states,  a 
person  may  acquire  a  property  in  a  slave,  that  such  acquisition, 
being  contrary  to  natural  right,  and  effected  by  the  loral  law,  is 
dependent  upon  such  local  law  for  its  existence  and  efficacy,  and 
being  contrary  to  the  fundamental  laws  of  the  state,  such  general 
right  of  property  cannot  be  exercised  or  recognized  here. 


OF  THE  EMANCIPATION  OF  SLAVES.  369 

That  as  a  general  rule,  all  persons  coming  within  the  limits  of  a 
state,  become  subject  to  all  its  municipal  laws,  civil  and  criminal, 
and  entitled  to  the  privileges  which  those  laws  confer  ;  that  this 
rule  applies  as  well  to  blacks  as  whites,  except  in  the  case  of  fugi 
tives,  to  be  afterwards  considered  ;  that  if  such  persons  have  been 
slaves,  they  become  free,  not  so  much  because  any  alteration  has 
been  made  in  their  status,  or  condition,  as  because  there  is  no  law 
which  will  warrant,  but  there  are  laws,  if  they  choose  to  avail 
themselves  of  them,  which  prohibit  their  forcible  detention  or  for 
cible  removal. 

That  the  law  arising  from  the  comity  of  nations  cannot  apply  ; 
because  if  it  did,  it  would  follow  as  a  necessary  consequence,  that 
all  those  persons  who  by  force  of  local  laws,  and  within  all  foreign 
places  where  slavery  is  permitted,  have  acquired  slaves  as  property, 
might  bring  their  slaves  here,  and  exercise  over  them  the  rights  and 
power  which  an  owner  of  property  might  exercise,  and  for  any 
length  of  time,  short  of  acquiring  a  domicil  ;  that  such  an  appli 
cation  of  the  law  would  be  wholly  repugnant  to  our  laws,  entirely 
inconsistent  with  our  policy  and  our  fundamental  principles,  and  is 
therefore  inadmissible. 

Whether,  if  a  slave  voluntarily  brought  here,  and  with  his  own 
consent  returning  with  his  master,  would  resume  his  condition  as  a 
slave,  is  a  question  which  was  incidentally  raised  in  the  argument, 
but  is  one  on  which  we  are  not  called  on  to  give  an  opinion  in 
this  case,  and  we  give  none.  From  the  principle  above  stated,  on 
which  a  slave  brought  here  becomes  free,  to  wit,  that  he  becomes 
entitled  to  the  protection  of  our  laws,  and  there  is  no  law  to  war 
rant  his  forcible  arrest  and  removal,  it  would  seem  to  follow  as  a 
necessary  conclusion,  that  if  the  slave  waives  the  protection  of  those 
laws,  and  returns  to  the  state  where  he  is  held  as  a  slave,  his  con 
dition  is  not  changed. 

In  the  case  Ex  parte  Grace,  2  Haggard's  Ad.  R.  94.,  this  ques 
tion  was  fully  considered  by  Sir  Wm.  Scott,  in  the  case  of  a  slave 
brought  from  the  West  Indies  to  England,  and  afterwards  volun 
tarily  returning  to  the  West  Indies  ;  and  he  held  that  she  was  rein 
stated  in  her  condition  of  slavery. 

A  different  decision,  I  believe,  has  been  made  of  the  question  in 
some  of  the  United  States ;  but  for  the  reasons  already  given,  it  is 
not  necessary  to  consider  it  further  here. 

The  question  has  thus  far  been  considered  as  a  general  one, 
and  applicable  to  cases  of  slaves  brought  from  any  foreign  state  or 
47 


37Q  SLAVERY. 

country ;  and  it  now  becomes  necessary  to  consider  how  far  this 
result  differs,  where  the  person  is  claimed  as  a  slave  by  a  citizen  of 
another  state  of  this  Union,  that  is,  how  the  question  as  between 
citizens  of  different  states  is  affected  by  the  provision  of  the  con 
stitution  and  laws  of  United  States. 

In  Article  4.  sec.  2.,  the  constitution  declares  that  no  person 
held  to  service  or  labor  in  one  state,  under  the  laws  thereof,  escap 
ing  into  another,  shall  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

The  law  of  congress  made  in  pursuance  of  this  article  provides, 
that  when  any  person  held  to  labor  in  any  of  the  United  States,  &c. 
shall  escape  into  any  other  of  the  said  states  or  territories,  the  per 
son  entitled,  &c.  is  empowered  to  arrest  the  fugitive,  and  upon 
proof  made  that  the  person  so  seized  under  the  law  of  the  state, 
from  which  he  or  she  fled,  owes  services,  &c.  Act  of  Feb.  12th, 
1793. 

In  regard  to  these  provisions,  the  court  are  of  opinion,  that  as 
by  the  general  law  of  this  commonwealth,  slavery  cannot  exist, 
and  the  rights  and  powers  of  slave  owners  cannot  be  exercised 
therein.  The  effect  of  this  provision  in  the  constitution  and  laws  of 
the  United  States,  is  to  limit  and  restrain  the  operations  of  this 
general  rule,  so  far  as  it  is  done  by  the  plain  meaning  and  obvious 
intent  and  import  of  the  language  used,  and  no  further.  The  con 
stitution  and  law  manifestly  refer  to  the  case  of  a  slave  escaping 
from  a  state  where  he  owes  service  or  labor,  into  another  state  or 
territory.  He  is  termed  a  fugitive  from  labor ;  the  proof  to  be 
made  is,  that  he  owed  service  or  labor,  under  the  laws  of  the  state 
or  territory  from  which  he  fled,  and  the  authority  given  is  to  remove 
such  fugitive  to  the  state  from  which  he  fled.  This  language  can, 
by  no  reasonable  construction,  be  applied  to  the  case  of  a  slave 
who  has  not  fled  from  the  state,  but  who  has  been  brought  into 
this  state  by  his  master. 

The  same  conclusion  will  result  from  a  consideration  of  the 
well  known  circumstances  under  which  this  constitution  was 
formed.  Before  the  adoption  of  the  constitution  the  states  were, 
to  a  certain  extent,  sovereign  and  independent,  and  were  in  a  con 
dition  to  settle  the  terms  upon  which  they  would  form  a  more  per 
fect  union.  It  has  been  contended  by  some  over-zealous  philan 
thropists,  that  such  an  article  in  the  constitution  could  be  of  no 


OF  THE  EMANCIPATION  OF  SLAVES.  371 

binding  force  or  validit}7,  because  it  was  a  stipulation  contrary  to 
natural  right.  But  it  is  difficult  to  perceive  the  force  of  this  ob 
jection.  It  has  already  been  shown,  that  slavery  is  not  contrary  to 
the  law  of  nations.  It  would  then  be  the  proper  subject  of  trea 
ties  among  sovereign  and  independent  powers. 

Suppose  inste.id  of  forming  the  present  constitution,  or  any  other 
confederation,  the  several  states  had  become  in  all  respects  sove 
reign  and  independent,  would  it  not  have  been  competent  for  them 
to  stipulate,  that   fugitive   slaves  should  be  mutually  restored,  and 
to  frame  suitable  regulations,  under  which  such  a  stipulation  should 
be  carried  into  effect  ?     Such  a  stipulation  would  be  highly  import 
ant  and  necessary  to  secure  peace  and  harmony  between  adjoining 
nations,  and  to  prevent  perpetual  collisions  and  border  wars.     It 
would  be  no  encroachment  on  the  rights  of  the  fugitive  ;  for  no 
stranger  has  a  just  claim  to  the  protection  of  a  foregn  state  against 
its  will,  especially  where  a  claim  to  such  protection  would  be  likely 
to  involve  the  state  in  war  ;  and  each  independent  state  has  a  right 
to  determine  by  its  own  laws  and  treaties,  who  may  come  to  reside 
or   seek  shelter  within  its  limits.     Now,  the  constitution   of  the 
United  States  partakes  both  of  the  nature  of  a  treaty  and  of  a  form 
of  government.     It  regards  the  states,  to  a  certain  extent,  as  sove 
reign   and  independent  communities,  with  full  power  to  make  their 
own  laws,  and  regulate  their  domestic  policy,  and  fixes  the  terms 
upon  which  their  intercourse  with  each  other  shall  be  conducted. 
In   respect   to   foreign    relations,   it   regards   the   people   of  the 
state  as  one  community,  and    constitutes   a  form  of  government 
for  them.     It  is  well  known  that  when  this  constitution  was  formed, 
some  of  the  states  permitted  slavery  and  the  slave  trade,  and  consi 
dered  them  highly  essential  to  their  interests,  and  that  some   other 
states  had  abolished  slavery  within  their  own  limits,  and  from  the 
principles  deduced  and  policy  avowed  by  them,  might  be  presumed 
to  desire  to  extend  such  abolition  further.     It  was  therefore  mani 
festly  the  intent  and  the   object  of  one  party  to  this  compact  to 
enlarge,  extend  and  secure,  as  far  as  possible,  the  rights  and  powers 
of  the  owners  of  slaves,  within  their  own  limits,  as  well  as  in  other 
states,  and  of  the  other   party  to  limit  and  restrain  them.     Under 
these  circumstances  the  clause  in  question  was  agreed  on  and  in 
troduced  into  the  constitution  ;  and  as  it  was  well  considered,  as  it 
was  intended  to  secure  future  peace  and  harmony,  and  to  fix  as 
precisely  as  language  could  do  it,  the  limit  to  which  the  rights  of 
one  party  should  be  exercised  within  the  territory  of  the  other,  It 
is  to  be  presumed  that  they  selected  terms  intended  to  express  their 


372  SLAVERY. 

exact  and  their  whole  meaning  ;  and  it  would  be  a  departure  from 
the  purpose  and  spirit  of  the  compact  to  put  any  other  construc 
tion  upon  it  than  that  to  be  derived  from  the  plain  and  natural  im 
port  of  the  language  used.  Besides,  this  construction  of  the 
provision  in  the  constitution  gives  to  it  a  latitude  sufficient  to  afford 
effectual  security  to  the  owners  of  slaves.  The  states  have  a 
plenary  power  to  make  all  laws  necessary  for  the  regulation  of 
slavery  and  the  rights  of  slave  owners,  whilst  the  slaves  remain 
within  their  territorial  limits ;  and  it  is  only  when  they  escape, 
without  the  consent  of  their  owners,  into  other  states,  that  they 
require  the  aid  of  other  states  to  enable  them  to  regain  their  do 
minion  over  the  fugitives. 

But  this  point  is  supported  by  most  respectable  and  unexception 
able  authorities. 

In  the  case  of  Butler  v.  Hopper,  1  Wash.  C.  C.  Rep.  499,,  it 
was  held  by  Mr.  Justice  Washington,  in  terms,  that  the  provision 
in  the  constitution  which  we  are  now  considering-,  does  not  extend 
to  the  case  of  a  slave  voluntarily  carried  by  his  master  into  another 
state,  and  there  leaving  him  under  the  protection  of  some  law  de 
claring  him  free.  In  this  case,  however,  the  master  claimed  to 
hold  the  slave  in  virtue  of  a  law  of  Pennsylvania,  which  permitted 
members  of  congress  and  sojourners,  to  retain  their  domestic 
slaves,  and  it  was  held  that  he  did  not  bring  himself  within  either 
branch  of  the  exception,  because  he  had,  for  two  years  of  the  pe 
riod,  ceased  to  be  a  member  of  congress,  and  so  lost  the  privilege  ; 
and  by  having  become  a  resident  could  not  claim  as  a  sojourner. 
The  case  is  an  authority  to  this  point,  that  the  claimant  of  a  slave, 
to  avail  himself  of  the  provisions  of  the  constitution  and  laws  of  the 
United  States,  must  bring  himself  within  their  plain  and  obvious 
meaning,  and  they  will  not  be  extended  by  construction  ;  and  that 
the  clause  in  the  constitution  is  confined  to  the  case  of  a  slave  es 
caping  from  one  state  and  fleeing  to  another. 

But  in  a  more  recent  case,  the  point  was  decided  by  the  same 
eminent  judge.  Ex  parte  Simmons,  4  Wash.  C.  C.  Rep.  396.  It 
was  an  application  for  a  certificate  under  §  3  of  the  act  of  Feb.  12. 
1793.  He  held  that  both  the  constitution  and  laws  of  the  United 
States  apply  only  to  fugitives,  escaping  from  one  state  and  fleeing 
to  another,  and  not  to  the  case  of  a  slave  voluntarily  brought  by  his 
master. 

Another  question  was  made  in  that  case,  whether  the  slave  was 
free  by  the  laws  of  Pennsylvania,  which  like  our  own  in  effect, 


OF  THE  EMANCIPATION  OF  SLAVES.  373 

liberate  slaves  voluntarily  brought  within  the  state,  but  there  is  an 
exception  in  favor  of  members  of  congress,  foreign  ministers, 
consuls,  and  sojourners:  but  this  provision  is  qualified  as  to  sojourn- 
ers  and  persons  passing  through  the  state  in  such  a  manner  as  to 
exclude  them  from  the  benefit  of  the  exception,  if  the  slave  was  re 
tained  in  the  state  longer  than  six  months.  The  slave  in  that  case 
having  been  detained  in  the  state  more  than  six  months,  was 
therefore  held  free. 

This  case  is  an  authority  to  this  point :  The  general  rule  being, 
that  if  a  slave  is  brought  into  a  state  where  the  laws  do  not  admit 
slavery,  he  will  be  held  free,  the  person  who  claims  him  as  a  slave, 
under  any  exception  or  limitation  of  the  general  rule,  must  show 
clearly  that  the  case  is  within  such  exception. 

The  same  principle  was  substantially  decided  by  the  state  court 
of  the  same  state  in  the  case  of  Commonwealth  v.  Holloway,  2  Serg. 
&  Rawle,  305.  It  was  the  case  of  a  child  of  a  fugitive  slave,  born 
in  Pennsylvania.  It  was  held  that  the  constitution  of  the  U.  States 
was  not  inconsistent  with  the  law  of  Pennsylvania  ;  that  as  the  law 
and  constitution  of  the  U.  S.  did  not  include  the  issue  of  fugitive 
slaves  in  terms,  it  did  not  embrace  them  by  construction  or  impli 
cation.  The  court  considers  the  law  as  applying  only  to  those 
who  escape.  Yet  by  the  operation  of  the  maxim  which  obtains  in 
all  the  states  wherein  slavery  is  permitted  by  law,  partus  sequiter 
ventrem,  the  offspring  would  follow  the  condition  of  the  mother,  if 
either  the  rule  of  comity  contended  for  applied,  or  if  the  law  of 
the  United  States  would  be  extended  by  construction. 

The  same  decision  has  been  made  in   Indiana,  3   American 
Jurist,  404. 

In  Louisiana,  it  has  been  held,  that  if  a  person  with  a  slave  goes 
into  a  state  to  reside  where  it  is  declared  that  slavery  shall  not  exist, 
for  ever  so  short  a  time,  the  slave,  ipso  facto,  becomes  free,  and  will 
be  so  adjudged,  and  considered  afterwards  in  all  other  states;  and 
a  person  moving  from  Kentucky  to  Ohio,  to  reside,  his  slaves 
thereby  became  free,  and  were  so  held  in  Louisiana.  This  case 
also  fully  recognizes  the  authority  of  states  to  make  laws  dissolv 
ing  the  relation  of  master  and  slave ;  and  considers  the  special  limi 
tation  of  the  general  power,  by  the  federal  constitution,  as  a  forci 
ble  implication  in  proof  of  the  existence  of  such  general  power. 
Lunsford  v.  Coquillon,  14  Martin's  Rep.  465. 

And  in  the  above  cited  case  from  Louisiana,  it  is  very  signifi 
cantly  remarked,  that  such  a  construction  of  the  constitution  and 


374  SLAVERY. 

law  of  the  United  States  can  work  injury  to  no  one,  for  the  princi 
ple  acts  only  on  the  willing  and  volenti  nonfit  injuria. 

The  same  rule  of  construction  is  adopted  in  analogous  cases  in 
"  other  countries,  that  is,  where  an  institution  is  forbidden,  but  where 
for  special  reasons,  and  to  a  limited  extent,  such  prohibition  is  re 
laxed,  the  exemption  is  to  be  construed  strictly,  and  whoever  claims 
the  exemption  must  show  himself  clearly  within  it,  and  where 
the  facts  do  not  bring  the  case  within  the  exemption,  the  general 
rule  has  its  effect. 

By  a  general  law  of  France,  all  persons  inhabiting,  or  being 
within  the  territorial  limits  of  France,  are  free.  An  edict  was 
passed  by  Louis  XIV.  called  c  Le  Code  Noir,'  respecting  slavery  in 
the  colonies.  In  1716,  an  edict  was  published  by  Louis  XV.  con 
cerning  slavery  in  the  colonies,  and  reciting,  among  other  things, 
that  many  of  the  colonists  were  desirous  of  bring  ng  their  slaves 
into  France,  to  have  them  confirmed  in  the  principles  of  religion, 
and  to  be  instructed  in  various  arts  and  handicrafts,  from  which 
the  colonists  would  derive  much  benefit,  on  the  return  of  the  slaves, 
but  that  many  of  the  colonists  feared  that  their  slaves  would  pre 
tend  to  be  free  on  their  arrival  in  France,  from  which  their  owners 
would  sustain  considerable  loss,  and  be  deterred  from  pursuing 
an  object  at  once  so  pious  and  useful.  The  edict  then  provides  a 
series  of  minute  regulations  to  be  observed  both  before  their  de 
parture  from  the  West  Indies,  and  on  their  arrival  in  France,  and 
if  all  these  regulations  are  strictly  complied  with,  the  negroes  so 
brought  over  to  France  shall  not  thereby  acquire  any  right  to  their 
freedom,  but  shall  be  compellable  to  return  ;  but  if  the  owners 
shall  neglect  to  comply  with  the  prescribed  regulations,the  negroes 
shall  become  free,  and  the  owners  shall  lose  all  property  in  them. 
20  Ho  well's  State  Trials,  15,  note. 

The  constitution  and  laws  of  the  United  States,  then,  are  con 
fined  to  cases  of  slaves  escaping  from  other  states  and  coming  with 
in  the  limits  of  this  state  without  the  consent  and  against  the  will 
of  their  masters,  and  cannot  by  any  sound  construction  extend  to 
a  case  where  the  slave  does  not  escape  and  does  not  come  within 
the  limits  of  this  state  against  the  will  of  the  master,  but  by  his  own 
act  and  permission.  This  provision  is  to  be  construed  according 
to  its  plain  terms  and  import,  and  cannot  be  extended  beyond  this, 
and  where  the  case  is  not  that  of  an  escape,  the  general  rule  shall 
have  its  effect.  It  is  upon  these  grounds,  we  are  of  opinion,  that 


OF  THE  EMANCIPATION  OF  SLAVES.  375 

an  owner  of  a  slave  in  another  state,  where  slavery  is  warranted 
by  law,  voluntarily  bringing  such  slave  into  this  state,  has  no  author 
ity  to  detain  him  against  his  will,  or  to  carry  him  out  of  the  state 
against  his  consent,  for  the  purpose  of  being  held  in  slavery. 

This  opinion  is  not  to  be  considered  as  extending  to  a  case 
where  the  owner  of  a  fugitive  slave  having  produced  a  certificate 
according  to  the  law  of  the  United  States,  is  bonajide  removing  such 
slave  to  his  own  domicil,  and  in  so  doing  passes  through  a  free 
state  ;  where  the  law  confers  a  right  of  favor,  by  necessary  impli 
cation,  it  gives  the  means  of  executing  it.  Nor  do  we  give  any 
opinion  upon  the  case,  where  an  owner  of  a  slave  in  one  state,  is 
bona  fide  removing  to  another  state  where  slavery  is  allowed,  and 
in  so  doing  necessarily  .passes  through  a  free  state,  or  arrives  by  ac 
cident  or  necessity  he  is  compelled  to  touch  or  land  therein,  re 
maining  no  longer  than  necessary.  Our  geographical  position 
exempts  us  from  the  probable  necessity  of  considering1  such  a  case, 
and  we  give  no  opinion  respecting  it. 

The  child  who  is  the  subject  of  this  habeas  corpus,  being  of  too 
tender  years  to  have  any  will,  or  give  any  consent  to  be  removed, 
and  her  mother,  being  a  slave  and  having  no  will  of  her  own,  and 
no  power  to  act  for  the  child,  she  is  necessarily  left  in  the  custody 
of  the  law.  The  respondent  having  claimed  the  custody  of  the 
child  in  behalf  of  Mr.  and  Mrs.  Slater,  who  claim  the  right  to 
carry  her  back  to  Louisiana,  to  be  held  in  a  state  of  slavery,  we 
are  of  opinion  that  his  custody  is  not  to  be  deemed  by  the  court  a 
proper  and  lawful  custody. 

Under  a  suggestion  made  in  the  outset  of  this  inquiry,  that  a 
probate  guardian  would  probably  be  appointed,  we  shall  for  the 
present  order  the  child  into  a  temporary  custody,  to  give  time  for 
an  application  to  be  made  to  the  judge  of  probate. 

3. 

BUTLER  et  a],    v.  DELAPLAINE.     Oct.  T.  1821.     7    Serg.  & 
Rawle's  Rep.  378. 

Held  by  the  court,  Duncan,  J.,  that  the  sojourning  of  a  master,  g0journ. 
a  citizen  of  another  state,  with  his  slave  in  this  state  at  different  ms>  &c- 
times,  will  not  entitle  such  slave  to  freedom,  unless  there   was  at 
some  time  a  continued  residence  here,  or  retaining  of  the  slave  for 
six   months,  unless,  perhaps,  in   the  case  of  a  fraudulent  removal 
backwards  and  forwards. 


376  SLAVERY. 

4. 

COMMONWEALTH  v.  GRIFFITH.    Oct.  T.  1823.     2  Pick.  Mass. 

Rep.  11. 

A  slave  be-  This  was  an  indictment  for  an  assault  and  battery  and  false  im- 
a°p?rsonin  prisonment,  committed  on  the  body  of  a  negro,  named  Randolph, 
Virginia  in  the  town  of  New  Bedford.  A  trial  was  had  upon  the  general 

escaped  in-   ,  . 

to   this        issue,  and  the  allegations  in  the  indictment  were  proved.     The 


defence  set  up,  and  which  also  was  proved,  was,  that  Randolph 
it  Was  a  siave>  formerly  the  property  of  one  M'Carty,  of  the  state  of 
was  held,  Virginia,  who  was  now  deceased.  Randolph  having  fled  from  his 
Upstates  service  in  his  life  time.  It  was  in  evidence,  that  Randolph  came 
s  to  ^ew  Bedford  four  or  five  years  ago,  and  that  he  had  a  dwel- 


2  sess.  ling  house  there,  which  he  had  acquired  and  held  as  his  own.  The 
slave  might  defendant  had  authority  in  writing  (with  a  scroll  in  the  place  of  a 
with'oiTa  seal)  from  one  Mason»  the  administrator  on  the  estate  of  M'Carty, 
warrant,  in  and  as  Mason's  agent  and  attorney  to  seize  and  arrest.  Randolph, 

order  to  be  TT    . 

taken  be-  pursuant  to  United  States  Laws,  2d  congress,  2.  sess.  ch.  7. 
judge*  &c.,  §•  3>'  respecting  persons  escaping  from  the  service  of  their  masters, 
Sat  statute  an(*  tO  take  *"m  before  a  judge  or  magistrate,  and  then  to  remove 
was  not  him  to  the  state  of  Virginia,  from  which  he  had  fled.  It  was  prov- 
ed»  that  by  the  laws  of  Virginia,  the  service  of  the  slave  upon  the 
decease  of  M'Carty  became  due  to  Mason,  the  administrator  ;  but 
the  deceas-  it  also  appeared,  or  was  admitted,  that  by  the  laws  of  Massachu- 
by'theeTagw  setts,  Randolph  did  not  owe  service  to  any  one  ;  and  farther,  that 


no  letters  of  administration  had  been  granted  upon  the  estate  of 
to  whom      M'Carty  within  this   commonwealth.     The  defendant,  accompa- 

the  service      . 

of  the  slave  nied  by  a  deputy  sheriff,  but  without  any  warrant  or  other  legal 
mi^ht^y  Pr°cess,  (though  it  appeared  that  application  had  been  made  by 
himself  or  him  to  the  district  judge  of  the  United  States,  who  had  decided 

Ins     agent, 

make  such  that  a  warrant  or  other  process  was  not  authorized  by  the  act  of 
without  ta-  congress,  and  was  not  necessary,)  seized  Randolph,  and  kept  him 
tettfrs°Uof  in  connnenient  for  an  hour  or  more,  intending  to  have  an 
administra-  examination  before  a  magistrate,  pursuant  to  the  act  above 
here;  and  mentioned.  A  verdict  was  taken  against  the  defendant;  and  it 
was  aoreed,  that  if  the  court  should  determine  that  the  act  of  con- 


under  seal  gress  was  not  valid,  or  that  the  administrator  had  not  power,  ac- 

was  not  re 

quisite  cording  to  the  true  construction  of  that  act,  and  of  the  laws  of 
pointTnen1?"  Virginia,  as  above  mentioned,  by  himself,  his  agent,  or  attorney,  to 
reclaim  thc  s^ave>  or  tnat  the  letter  of  attorney  was  not  sufficient 


OF  TIJE  EMANCIPATION  OF  SLAVES.  377 

to  operate  in  Massachusetts,  then  the  verdict  should  stand  ;  other 
wise  that  the  defendant  should  be  discharged. 

Parker,  Ch.  J.,  delivered  the  opinion  of  a  majority  of  the  court, 
in  substance  as  follows.  The  first  question  is,  whether  the  defend 
ant  was  duly  empowerd  as  an  agent  to  reclaim  the  slave.  We  do 
not  decide  whether  a  scroll  is  a  seal,  though  probably  it  would 
not  be  so  considered  in  this  state.  But  we  think  that  a  letter  of 
attorney  was  not  required  to  communicate  power  to  this  agent. 

In  general,  a  seal  is  not  necessary,  except  to  authorize  the  ma 
king  of  a  sealed  instrument.     A  common  letter,  or  a  parol  author 
ity,  is  sufficient  for  making  many  important  contracts.     The  words 
of  the  statute  are,  "  the  person  to  whom  such  labor  or  service  may 
be  due,  his  agent,  or  attorney."     If  a  letter  of  attorney  were  re 
quired,  the  statute  would  have  used  the  word  attorney  only;  but  the 
word  agent  being  used,  serves  to  explain  the  intention  of  the  legis 
lature.     The  question  then  is,  whether  Mason,  having  been  duly 
appointed  administrator  under  the  laws  of  Virginia,  had  a  right  to 
come  here  himself  and  claim  the  slave  ;  for  the  claim  by  his  agent 
was  the  same  as  if  made  by  himself.     It  has  been  decided,  that  a 
foreign  administrator  cannot  come  here  to  collect  a  debt  ;  and  if  it 
was  necessary  to  pursue  the  slave  in  the  character  of  administrator, 
the  authorities  are  clear  against  the  defendant.     But  by  the  statute 
of  the  United  States,  the  person  to  whom  the  service  is  due.,  may 
reclaim,  and  by  the  laws  of  Virginia  an  administrator  is  such  per 
son.     Taking  both  together,  Mason  might  come  here  to  reclaim  ; 
and  it  was  not  necessary  that  he  should  come  in  the  character  of 
an  administrator*     This  brings  the  case  to  a  single  point,  whether 
the  statute  of  the  United  States  giving  power  to  seize  a  slave  with 
out  a  warrant  is  constitutional.     It  is  difficult  in  a  case  like  this,  for 
persons  who  are  not  inhabitants  of  slave  holding  states,  to  prevent 
prejudice  from  having  too  strong  an  effect  on  their  minds.     We 
must  reflect,  however,  that  the  constitution  was  made  with  some 
states  in  which  it  would  not  occur  to  the  mind  to  inquire  whether 
slaves  were ,  property.     It  was  a  very  serious  question,  when  they 
came  to  make   the    constitution,  what  should  be  done  with  their 
slaves.     They  might  have  kept  aloof  from  the  constitution.     That 
instrument  was  a  compromise.     It  was  a  compact  by  which  all  are 
bound.     We  are  to  consider,  then,  what  was  the  intention  of  the 
constitution.     The  words  of  it  were  used  out  of  delicacy,  so  as  not 
to  offend  some  in  the  convention  whose  feelings  were  abhorrent 
to  slavery  ;  but  we  there  entered  into  an  agreement  that  slaves 
48 


378  SLAVERY. 

should  be  considered  as  property.  Slavery  would  still  have  con 
tinued  if  no  constitution  had  been  made.  The  constitution  does 
not  prescribe  the  mode  of  reclaiming  a  slave,  but  leaves  it  to  be 
determined  by  congress.  It  is  very  clear,  that  it  was  not  intended 
that  application  should  be  made  to  the  executive  authority  of  the 
state.  It  is  said  that  the  act  which  congress  has  passed  on  this 
subject,  is  contrary  to  the  amendment  of  the  constitution,  securing 
the  people  in  their  persons  and  property  against  seizures,  &c. 
without  a  complaint  upon  oath.  But  all  the  parts  of  the  instru 
ment  are  to  be  taken  together.  It  is  very  obvious,  that  slaves  are 
not  parties  to  the  constitution,  and  the  amendment  has  relation  to 
the  parties. 

But  it  is  said,  that  when  a  seizure  is  made,  it  should  be  made 
conformably  to  our  laws.  This  does  not  follow  from  the  constitu 
tion,  and  the  act  of  congress  says,  that  the  person  to  whom  the 
service  is  due,  may  seize,  &c.  Whether  the  statute  is  a  harsh  one, 
is  not  for  us  to  determine.  But  it  is  objected,  that  a  person  may 
in  this  summary  manner  seize  a  freeman.  It  may  be  so  ;  but  this 
would  be  attended  with  mischievous  consequences  to  the  person 
making  the  seizure,  and  a  habeas  corpus  would  lie  to  obtain  the  re 
lease  of  the  person  seized.  We  de  not  perceive  that  the  statute  is 
unconstitutional,  and  we  think  the  defence  is  well  made  out. 

5. 

MURRAY,  a  pauper,  v.  M<CARTY.     March   T.  1811.     2  Munf. 

Rep.  393. 

n92acon-f      Suit  for  freedom-     li  was  agreed,  that  M'Carty,  the  owner  of 
cemingthe  the  slave,  was  born  in  Virginia,  and  before  he  became  of  age,  was 

importa-  .    _  . 

tion  of       married  m  Maryland,  where  he  continued  to  reside  with  his  father- 


m'laW  fr°m  the  >7Gar  180°  tO  1804>  when  he  and  his  fami!)r  left 
Maryland  and  came  to  reside  in  Virginia,  and  brought  the  slave 

.  . 

with  him,  and  took  the  oath  against  evading  the  laws  for  prevent- 
in»  ^e  fartner  importation  of  slaves.  During  M'Carty's  residence 

sidence  a-    m  Maryland  he  built  no  house,  nor  rented  any,  but  resided  with  hij 
broad.  *  . 

father-in-law  ;  and  during  the   residence  was  at  one  time  in  Vir 

ginia,  and  voted  at  the  election  of  delegates.  The  court  was  of 
opinion  the  law  was  for  the  defendant.  Verdict  and  judgment  for 
defendant,  which  being  affirmed  in  the  district  court,  the  plaintiff 
appealed. 

The  judges  gave  their  opinions.     Cabcll,  J.,  observed,  that  a 
temporary  residence  abroad  would  not  divest  a  man  of  the  charac- 


OF  THE  EMANCIPATION  OF  SLAVES.  379 

ter  of  a  citizen  or  subject  of  a  state  or  nation  to  which  he  may  be 
long.  There  must  be  a  removal  with  an  intention  to  lay  aside 
that  character  ;  and  he  must  actually  join  himself  to  some  other 
community.  By  the  act  of  assembly  passed  17th  of  December, 
1792,  Rev.  Code,  vol.  1.  p.  186.,  the  privilege  of  bringing  slaves 
into  this  commonwealth  can  be  claimed  by  those  persons  only,  who 
at  the  time  of  their  removal,  were  citizens,  not  of  this,  but  of  some 
other  state  ;  and  as  it  is  admitted  that  the  appellee  was  a  native  of 
this  state,  and  has  not  laid  aside  that  character,  the  judgment  must 
be  reversed.  Aud  Judges  Roane  and  Fleming  concurred. 

6. 
BARNETT  v.  SAM.  April  T.  1821.  1  Gilmer's  Virginia  Rep.  232. 

This  was  a  suit  for  freedom,  in  forma  pauperis,  by  Sam.     The  fhe  act  Of 
following  case  was  made  by  a  demurrer  to  evidence  in  the  county  I792re<iui- 

J    ring    per- 

court  of  Amherst.     Sam  was  born  in  the  county  of  Augusta,  about  sons  remo- 
the  year  1788,  the  slave  of  Mary  Teas,  a  native  of  that  county,  virfmia 
then  residing  there.     Mary  Teas  removed  to  North  Carolina  about  ^o^serve 

1790,  where  she  resided,  and  Sam  with  her,  three  years.     In  1793  certain  for 

malities  has 
she  returned  to  Virginia,  bringing  Sam  with  her  ;  and  not  comply-  no  applica- 

ing   with  the  requisitions  of  the  statute  of  Virginia  of  1792,  Rev. 


of  1792,  p.  103.      She    continued  in  Virginia  until  the  year  1811,  Virginia 

5    removing 

when  she  sold  Sam  to  Barnett.  The  county  court  gave  judgment  to  another 
for  the  plaintiff  on  the  demurrer  to  evidence.  The  judgment  was  slaves,  and 
affirmed  on  appeal  to  the  superior  court  of  law  ;  and  an  appeal  was  ^hh^them 
taken  to  this  court.  to  Virgi- 

Per  Cur.  Roane,  J.  The  court  is  of  opinion,  that  Mrs.  Teas,  the  repeal 
under  whom  the  appellant  claims,  having  never  renounced  her  cha-  ° 
racter  of  citizen  of  Virginia,  nor  acquired  that  of  a  citizen  of  North 
Carolina,  is  not  embraced  by  the  first  part  of  the  proviso  of  §  4, 
ch.  103.  (p.  186.  of  Pleasants'  edition  of  the  laws,)  under  the  de 
cision  of  this  court  in  the  case  of  Murray  v.  M'Carty,  2  Munf.  Rep. 
393.,  so  as  to  deprive  a  slave  purchased  by  her  in  another  state,  after 
the  passing  of  that  act,  and  brought  into  this  commonwealth,  of  the 
right  of  freedom,  enuring  to  him  under  the  2d  section  thereof:  but 
the  appellee  in  this  case  having  been,  at  the  time  of  the  commence 
ment  of  this  act,  actually  owned  by  the  said  Mrs.  Teas,  his  right  to 
freedom  is  barred  by  that  circumstance,  under  the  provision  as  to 
citizens  of  the  commonwealth,  contained  in  the  last  part  of  the 
said  proviso  ;  and  this,  a  fortiori,  as  the  said  Mrs.  Teas  had  owned 
the  appellee  as  a  slave  in  Virginia,  and  carried  him  with  her  into 


380  SLAVERY. 

North  Carolina.     Both  judgments  are  to  be  reversed,  and  entered 
for  the  appellant. 

7. 

MONTGOMERY  v.  FLETCHER.  Dec.  T.  1828.  6  Rand's  Rep.  612. 

The  im-  gujt  jn  jorma  pauperis  by  the  plaintiff  to  recover  his  freedom. 

under  tho    It  appeared  that  Robert  Whiteford,  an  inhabitant  of  Maryland,  in- 

by  "an  a*-  tending  to  move  with  his  family  and  slaves  to  Virginia,  sent  his  son 

gent*  to  Fauquier  in  this  state,  where  he  bought  a  farm  for  his  father, 

and  settled  the  slaves  upon  it,  of  which  the  plaintiff  was  one.  The 

son  took  the  oath  prescribed  by  the  act  of  1792,  to  be  taken  by 

those  who  remove  from   another  state  to  this  with  slaves.     The 

father  soon  after  followed,  and  became  a  citizen  of  this  state,  where 

he  died,  and  the  plaintiff  was  sold  to  the  defendant.     Verdict  and 

judgment  for  defendant. 

Per  Cur.  The  president.  The  son,  who  was  agent  for  the 
father,  and  the  father  were  the  importers  of  the  slaves.  Both  in 
tended  to  become,  and  did  become  citizens  of  Virginia,  by  which 
the  law  was  satisfied  ;  its  policy  being  to  exclude  slaves  generally, 
but  to  admit  them  when  brought  by  persons  removing  from  another 
state  and  becoming  citizens.  Either  the  son  or  the  father  might 
take  the  oath.  Judgment  affirmed. 

8. 

GOMEZ  v.  BONNEVAL.      June  T.  1819.     6  Martin's  Louisiana 

Rep.   656. 

Per  Cur.  Derbigny,  J.  The  petitioner  is  a  negro  in  actual 
become  state  of  slavery  ;  he  claims  his  freedom,  and  is  bound  to  prove  it. 
bdngHle-8  ln  hig  attempt,  however,  to  show  that  he  was  free  before  he  was 

gaily   im-    introduced  in  this  countrv,  he  has  failed  :  so  that  his  claim  now 
ported  into 

the  state,  rests  entirely  on  the  laws  prohibiting  the  introduction  of  slaves  in 
the  United  States.  That  the  plaintiff  was  imported  since  that  pro 
hibition  does  exist,  is  a  fact  sufficiently  established  by  the  evidence. 
What  right  he  has  acquired  under  the  laws  forbidding  such  impor 
tation  is  the  only  question  which  we  have  to  examine.  Formerly, 
while  the  act  dividing  Louisiana  into  two  territories  was  in  force  in 
this  country,  slaves  introduced  here  in  contravention  to  it,  were  freed 
by  operation  of  law  ;  but  that  act  was  merged  in  the  legislative  pro 
visions,  which  were  subsequently  enacted  on  the  subject  of  importa 
tion  of  slaves  into  the  United  States  generally.  Under  the  now  ex 
isting  laws,  the  individuals  thus  imported  acquire  no  personal  rights : 


OF  THE  EMANCIPATION  OF  SLAVES.  3Sl 

they  are  mere  passive  beings,  who  are  disposed  of,  according  to 
the  will  of  the  different  state  legislatures.  In  this  country,  they 
are  to  remain  slaves,  and  to  be  sold  for  the  benefit  of  the  state. 
The  plaintiff,  therefore,  has  nothing  to  claim  as  a  freeman  ;  and 
as  to  a  mere  change  of  master,  should  such  be  his  wish,  he  cannot 
be  listened  to  in  a  court  of  justice. 

9. 
LINK  v.  BENER.     3  Caines'  Rep.  325. 

Held  by  the  court,  that  a  slave  brought  into  the  state  of  New  I 
York  after  June  1785,  and  sold  after  October,  1801,  is  within  the  York 
protection  of  the  act  of  1788,  and  entitled  to  be  free,  notwith 
standing  the  law  of  1788  is  repealed  by  the  act  of  April,  1801, 
the  slave  having  acquired  under  the  statute  of  1788  a  right  not  to 
be  sold  ;  that  right  is  preserved  to  him  by  the  proviso  of  the  re 
pealing  act  of  1801. 

10. 
HELM  v.  MILLER.     January  T.  1820.     17  Johns.  Rep.  236. 

The  court  held,  that  under  the  act  of  February,  1788,  to  prevent  gaie  0£ 
the  importation  of  slaves  within  this  state,  a  sale  in  a  due  course 
of  administration,  or  by  persons  acting  in  auter  droit,  would  not  be 
within  the  act,  (Sable  v.  Hitchcock,  2  Johns.  Cas.  79.,)  so  as  to 
emancipate  the  slave.  But  where  the  sale  was  made  by  the  hus 
band  of  the  executrix,  who  was  also  legatee  of  the  slave,  to  pay 
his  private  debt,  and  was  not  made  to  pay  the  debt  of  the  intestate, 
the  sale  was  within  the  act,  and  the  slave  was  entitled  to  his  freedom. 

11. 

HENDERSON  v.  NEGRO  TOM.     June  T.  1817.      4  Har.  &  Johns. 

Rep.  282. 

Held  by  the  court,  that  where  a  slave  had  been  imported  into  The  slave 
this  state  in  1792  by  his  owner,  who  had  not  complied  with  the  jJStiJJi* 
provisions  of  the  act  of  April  1783,  ch.  23.,  by  causing  a  registry,  gistered. 


*  If  a  slave  escape  from  his  master  in  Virginia,  and  be  found  in  the  District  of  Co 
lumbia,  and  be  there  sold  by  his  master,  the  slave  does  not  thereby  acquire  a  right  to 
his  freedom.  Negro  Emanuel  v.  Henry  W.  Ball.  June  T.  1814.  p,  24.  And  the 
court  held,  in  the  case  of  Negro  Violette  v.  Henry  VV.  Ball,  ibid.  p.  24.,  the  court  re 
fused  to  instruct  the  jury,  that  the  petitioner  was  entitled  to  her  freedom,  for  being 
sent  from  the  city  of  Washington  to  Virginia  for  sale,  (not  being  sold,)  and  returned 
to  this  city,  being  absent  8  or  9  months. 


SLAVERY. 

&c  to  be  made  of  such  slave,  that  the  slave  was  entitled  to  his 
freedom.  See  the  case  of  Scott  v.  Negro  Ben,  6  Cranch's  Rep.  1 . 

12. 
HANEY  v.  WADDLE.    May  T.  1815.     3  Har.  &  Johns.  Rep.  557. 

A  minor  Qn  a  petition  for  freedom  the  court  below  held,  that  the  peti- 

can   do  no 

act  to  affect  tioner  was  entitled  to  his  freedom,  having  been  imported  into  the 
under  the    state  by  a  minor.     That  a  minor  had  no  more  authority  to  import 
vent°th^re"  slaves  into  tms  state  tnan  an   adult,  and  that  neither  the  one  nor 
importa-      the  other  had  such  authority.     The  defendant  appealed, 
slaves.  The  court  dissented  from  the  opinion  of  the  county  court,  on 

the  ground  that  the  minor  could  do  no  act  to  affect  his  rights,  nor 
could  his  guardian  for  him  ;  that  the  guardian  of  a  minor  import 
ing  a  slave  did  not  entitle  him  to  freedom,  nor  did  the  assent  of  the 
minor,  during  his  minority,  give  such  a  title.  And  see  Sprigg  v. 
Negro  Mary,  3  Har.  &  Johns.  Rep.  491. 

13. 

NEGRO  JAMES  v.  GAITHER.     Dec.  T.  1807.     2  Har.  &  Johns. 

Rep.  176. 

Sng'ihe       Held  by  the  court> that  Paro1  ^ence  is  not  admissible  to  prove 

mode  of      that  a  deed  of  manumission  was  attested  in  the  presence  of  two 

ti^miSt"   witnesses,  when  it  appeared  only  one  had  signed  the  instrument ; 

ed  wSh.ph~  and  that  a  deec*  °f  manumission  executed  in  the  presence  of  one 

witness  only,  will  not  give  freedom  to  the  slaves  mentioned  therein. 

By  the  act  of  1752,  ch.  1.  §  5.,  two  witnesses  are  necessary,  and 

they  must  subscribe  their  names  to  the  deed  of  manumission. 

14. 

FULTON  v.  LEWIS.    May  T.  1815.    3  Har.  &  Johns.  Rep.  564. 

tion°by  a       Petition  for  freedom.     John  Levant  removed  from  St.  Domingo 

mrSfronfy"  in  July>  1793j  of  wnich  Place  he  was  a  native,  to  the  city  of  Balti- 

St.Domin-  more,  to  avoid  the  insurrection  in  the  former  place,  and  brought 

with  him  three  negroes  as  his  slaves.     He  sold  one  of  the  negroes, 

the  petitioner,  to  Clem,  who  sold  him  to  the  defendant,  and  Levant 

returned  to  the  West  Indies  in  1796. 

The  court  decided  on  this  statement  of  facts,  that  the  petitioner 
was  entitled  to  his  freedom  ;  and  on  appeal  to  this  court  the  judg 
ment  was  affirmed. 


OF  THE  EMANCIPATION  OF  SLAVES.  383 

15. 

COMMONWEALTH  v.  HALLOW  AY.     July  T.  1816.     2  Serg.  & 
Rawle's  Rep.  305. 

Habeas  corpus  for  the  body  of  Eliza,  a  negro  girl.     It  appeared  Birth  in 
that  Eliza  was  the  daughter  of  Mary,  a  slave  who  absconded  from  Sag™** 
her  master  in  Maryland,  and  came  to  Philadelphia,  where  she  re-  freedL0.™  to, 

the  child  of 

sided  about  two  years,  when  Eliza  was  born.     And  the  question  aslavewho 
was,  whether  birth,  in  Pennsylvania,  gives  freedom  to  a  child  of  a  frofem°ano- 


slave  who  had  absconded  from  another  state  before  she  became 

pregnant.  became 

Held  by  the  court,  that  by  the  act  of  March,  1780,  which  de-  p 
clares  "  that  all  servitude  for  life,  or  slavery  of  children,  in  conse 
quence  of  the  slavery  of  their  mothers,  in  the  case  of  all  children 
born  within  the  state,  from  and  after  the  passing  of  this  act,  shall 
be  utterly  taken  away  and  extinguished,  and  forever  abolished,'* 
which  not  being  repugnant  to  the  constitution,  or  laws  of  congress, 
was  clear  in  favor  of  Eliza,  and  that  she  was  born  free, 

Per  Yeatesy  J.  Whatever  may  have  been  our  ideas  of  the 
rights  of  slave  holders  in  our  sister  states,  we  cannot  deny  that 
it  was  competent  to  the  legislature  to  enact  a  law  ascertaining  the 
freedom  of  the  issue  of  slaves  born  after  the  passing  of  the  act 
within  this  state. 

16. 

COMMONWEALTH  ex  rel.,  HALL  v.  COOK.  Sep.  T.  1822. 
1  Watts'  Rep.  155.  COMMONWEALTH  v.  ROBINSON,  ibid. 
p.  158. 

Habeas  corpus  to  bring  up  Hannah  Hall,  who  had  been  a  slave  of  the  Dis- 
of  Mrs.  Williamson  for  life. 

Mrs.  Williamson  had  resided  in  the  District  of  Columbia  with 


manums- 


Hannah,   and  removed  into  Pennsylvania,  bringing  Hannah  with  nia  to  re- 
her  to  reside,  where  she  signed  an  indenture  to  serve  her  mistress,  brought 
Mrs.  Willamson,  for  the   period  of  seven  years.     The  indenture  Ja^heh"ho 
stated,  that  it  was  entered  into  in  pursuance  of  a  parol  agreement  in  conside- 
made  before  their  removal  into  Pennsylvania.     No  other  proof  of 
that  fact,  however,  existed.     The  indenture  was  transferred  to 
Cook.    And  the  question  was  whether  an  indenture,  in  considera-  serve   sev- 

en  years, 

tion  of  manumission  executed  in  Pennsylvania  was  valid.  the    court 

The  Court.     Rogers,  J.,  held  the  indenture  invalid.     The  con-  indenture 
tract  was  nudum  pactum.     There  was  no  consideration  ;    the  slave  V0ld> 


384  SLAVERY. 

was  free  the  moment  her  mistress  brought  her  into  Pennsylvania 
to  reside.  And  after  referring  to  1  Yeates'  Rep.  365.,  6  Binney's 
Rep.  204.,  4  Serg.  &  Rawl,  218.,  held,  that  the  indenture  would 
'  be  valid  if  it  was  executed  in  a  state  where  slavery  is  recognized, 
by  a  person  who  was  a  slave.  But  this  indenture  was  invalid,  al 
though  made  in  pursuance  of  a  parol  agreement  entered  into  in 
the  District  of  Columbia.  And  see  Commonwealth  v.  Clements, 
6  Binney's  Rep.  207. 

17. 
JACK,  a  negro  man,  v.  MARTIN.     July  T.  1834.     12  Wendell's 

Rep-  31L 

writ  dt  ho-  Per  Cur.     Nelson,  J.     Where  a  slave  escapes  from  one  state 

^«nVwiii  into  another,  and  is  pursued  by  his  owner,  and  taken  before  a 

not  lie.  magistrate,  and  the  magistrate,  in  pursuance  of  the  law  of  congress, 

ittion  Te-  examines  into  the  matter,  and  grants  a  certificate,  that  the  slave 


owes  service  or  lab°r  to  rt*6  Person  claiming  him,  and  allows  the 
on  this  sub-  claimant  to  remove  him  to  the  state  from  which  he  fled,  the  claim- 
national  ant  cannot  be  prevented  from  removing  him  by  a  writ  de  homine 
m°eVntrnThe  repligiando  sued  out  under  the  authority  of  a  state  law.  The  right 
state  laws  of  legislation  on  this  subject  belongs  exclusively  to  the  national 

yield  to  the  .   «      i 

superiority  government  ;  and  if  such  right  be  conceded  to  have  been  origi- 
nally  concurrent,  after  the  exercise  of  its  power  by  the  national  go- 
vernment)^  control  over  the  subject  by  the  state  governments  neces- 
cessary  sarily  ceases,  so  as  to  avoid  the  effects  of  adverse  and  conflicting 
owner  of  a  legislation.  In  cases  of  collision,  state  laws  yielded  to  the  superior 
authority  of  the  laws  of  the  general  government. 


the  state  TO  entitle  the  owner  of  a  slave  to  the  benefit  of  the  provisions 

the  slave  of  the  constitution  and  law  of  the  United  States,  in  this  respect,  it  is 
tide'  'hinT  not  necessary  that  he  should  be  a  citizen  of  the  state  from  which  the 
to  the  pro-  siave  fad  ;  it  is  only  incumbent  upon  him  to  show,  that  under  the 


the  consti-  laws  of  the  state   from  which  the  slave  escaped,  he  is  entitled  to 

lawsn 
u.  s. 


lawsnofathe  tne  srvice  or  labor  of  the  slave. 


18. 

COMMONWEALTH  v.  GRIFFEN.     Oct.  T.   1832.     7  J.  J.  Mar- 
siav"8inu>a  shall'  s  Rep.  588.  ;  COMMONWEALTH  v.  GREATHOUSE,  ibid. 

the  state  ^f\C\ 

contrary  to  P»  <->^V. 

of  1815,  ia       The  court,  Robertson,  J.,  held,  that  bringing  a  slave  into  Ken- 
b?e  offence"  tucky  by  a  person  not  protected  by  any  of  the  exceptions  in  the 


OF  THE  EMANCIPATION  OF  SLAVES.  385 

statute  of  1815,  although  he  intends  to  export,  and  afterwards  ex 
ports  the  slave  to  another  state  for  sale,  is  an  importation  in  this 
state,  in  violation  of  the  statute.  And  an  importation  for  any  pur 
pose,  or  by  any  person  not  authorized  by  the  statute,  is  an  indict 
able  offence.  And  the  indictment  need  not  charge  a  sale  of  them. 
Importation  is  one  specific  offence,  and  a  subsequent  sale  is 
another. 


(F.)    By   IMPLICATION. 

1. 

OATFIELD  v.  WARING.    May  T.  1817.     14  Johns  Rep.  188. 

The  court  seemed  to  apply  the  principle,  that  where  a  person 
brings  an  action  against  another,  he  cannot  afterwards  claim  him  against  an 
as  his  slave.  Spencer,  J.,  observed,  that  the  fact  that  the  defendant  concession 
had  sued  the  plaintiff  for  harboring  his  slave,  goes  a  great  way  in  Jj^  ^d13 
establishing  that  he  was 
cestion  of  the  defendant 
right  to  bring  the  action. 


establishing  that  he  was  free  ;  at  all  events  it  is  a  very  solemn  con-  cannot  be 
cestion  of  the  defendant  that  he  was  so.     And  consequently  had  a  a  slave. 


2. 
HALL  v.  MULLIN.     June  T.  1821.     5  Har.  &  Johns.  Rep.  190. 

Trespass  quare  clausum  fregit.     The  plaintiff  claimed  title  to 
the  close  in  question  by  the  will  of  Henry  L.  Hall,  who  devised  property0 
as  follows  :  "  I  give  and  devise  to  Dolly  Mullin  one  hundred  and  realorper- 

J  sonal  to   a 

forty  acres  of  land,  being  part  of  the  tract   called  Partnership,"  slave,  by 
&c.     Dolly  Mullin  was  the  slave  of  the  testator.    Judgment  was  entitles  the 
entered  for  the  plaintiff,  by  consent,  and  the  defendant  appealed  freedom  by 

to  this  court.  implica 

tion. 
Per  Cur.     Johnson,  J.     At  the  time  of  the  will  of  Henry  L. 

Hall,  it  was  in  his  power  to  have  set  Dolly  Mullin  free  ;  and  the 
question  is,  has  he  done  so  by  implication  ?  It  was  admitted,  and 
could  not  be  denied,  that  by  the  devise  of  the  land,  and  the  be 
quest  of  other  property,  she  must  be  freed  in  order  to  give  effect 
to  such  devise  and  bequest.  Her  freedom  could  certainly  be  im 
plied  from  the  devise  itself. 

Per  Chase,  Ch.  J.     I  am   also   of  opinion  that  Dolly  Mullin, 

being  the  slave  of  Henry  L.  Hall,  the  will  of  the  said  Henry  L. 

Hall  will  operate,  and  is  effectual  to  manumit  and  give  freedom  to 

Dolly  Mullin,  and  that  she  acquired  a  capacity,  and  was  rendered 

49 


386  SLAVERY. 

capable  of  taking,  and  did  take  the  lands  devised  to  her  under  the 

will. 

3. 

•MEILLEUR  et  al.  v.  COUPRY.    May  T.  1829.  20  Martin's  Louisi 

ana  Rep.  128. 

A  slave  un-  Per  Cur.  Martin,  J.  The  heirs  of  Louise  Rilieux  obtained  a 
yelr^of  rule  against  Coupry,  who  had  obtained  letters  testamentary  on  her 
age  can-  estate,  to  show  cause  why  they  should  not  be  revoked,  and  sug- 

iiot  be  pre  .  . 

sumed  to     gesting  that  he  was  a  slave,  and  therefore  incapable  o\  exercising 


the  office  of  testamentary  executor.  He  contended  that  he  was  a 
freeman.  The  court  thought  otherwise.  The  letters  were  re 
voked,  and  he  appealed.  It  was  admitted,  that  he  was  born  of  a 
slave  mother  ;  that  his  mother's  owner  has  ever  resided,  and  still 
resides,  in  New  Orleans  ;  that  he  is  twenty-seven  or  twenty-eight 
years  of  age  ;  that  he  has  enjoyed  his  freedom  for  fourteen  years, 
and  been  married  as  a  freeman. 

On  these  facts,  it  is  clear,  he  was  born  a  slave,  and  must  con 
tinue  so,  unless  he  was  emancipated  ;  as  he  is  under  the  age  of 
thirty  years,  and  the  lawful  emancipation  of  a  slave  cannot  take 
place  before  that  age,  the  presumption  of  a  legal  emancipation, 
which  might  result  from  his  long  possession  of  his  freedom,  is  re 
pelled  from  the  evident  impossibility  his  legal  emancipation  hav 
ing  taken  place  and  the  legal  impossibility  of  a  slave  becoming 
free  without  a  legal  emancipation.  Prescription  <?an  no  more  avail 
him,  than  it  would  the  possessor  of  property  evidently  out  of  com 
merce.  Judgment  affirmed. 


NOTE. — It  will  be  seen  by  this  chapter  that  the  owner  of  slaves 
may  emancipate  them  by  deed,  will,  or  by  a  contract  executed. 
But  to  this  benevolence  of  the  owner  there  are,  in  the  most  of  the 
states,  restraints  upon  the  exercise  of  this  power  by  the  owner. 
Slaves  are  recognized  wherever  the  system  is  tolerated  as  pro 
perty,  and  are  subject  to  all  the  rules  in  the  acquisition,  possession, 
and  transmission  of  property.  It  would  seem,  therefore,  upon  a 
first  view  of  the  case,  that  the  owner  should  do  with  his  property 
whatever  he  pleased,  and  should  have  the  privilege  of  renouncing 
his  right  to  it  whenever  he  pleased,  and  without  being  qualified 
by  any  public  laws  or  regulations  upon  the  subject.  Such,  how- 


OF  THE  EMANCIPATION  OF  SLAVES.  387 

ever,  is  not  the  fact ;  restraints  upon  this  right  exist  in  nearly  all 
the  states. 

By  the  Rev.  Stat.  of  Missouri,  p.  587.,  any  person  may  eman 
cipate  his  or  her  slave,  by  last  will,  or  other  instrument  in  writing, 
under  hand  and  seal  attested  by  two  witnesses,  and  proved  and 
acknowledged  in  the  circuit  court  of  the  county  where  the  party 
resides  ;  but  there  is  a  saving  as  to  creditors  of  debts  prior  to  the 
act  of  emancipation.  And  provision  is  made  to  compel  the  eman 
cipator  to  support  the  emancipated  slave,  where  in  the  judgment 
of  the  court  he  was  of  unsound  mind,  or  above  forty-five  years  of 
age,  or  under  twenty-one,  or  if  a  female,  under  eighteen  years. 

By  the  revised  code  of  Virginia,  vol.  1.  p.  432.,  slaves  may  be 
emancipated  by  last  will  and  testament,  or  writing,  under  hand  and 
seal,  attested  and  proved  in  the  county  or  corporation  court  by 
two  witnesses,  or  acknowledged  by  the  party  in  the  court  of  the 
county  where  he  or  she  resides,  to  emancipate  or  set  free,  his  or 
her  slaves,  or  any  of  them  who  shall  thereupon  be  entirely  and 
fully  discharged  from  the  performance  of  any  contract  entered 
into  during  servitude.  But  the  slaves  emancipated  are  made 
liable  for  the  previous  debts  of  the  owner. 

Emancipation  is  guarded  in  Tennessee  by  a  provision,  (statute 
of  1777,)  that  the  state  must  assent,  or  the  act  of  manumission  by 
deed  or  will  is  ineffectual,  and  as  it  appears,  Fisher  v.  Dabbs,  6 
Yerger's  Rep.  119.,  the  emancipated  slave  must  be  immediately 
removed  beyond  the  limits  of  the  United  States. 

By  the  statute  law  of  Alabama,  Aikens'  Dig.  647.,  slaves  may 
be  emancipated  by  the  master,  on  application  to  the  county  court, 
and  on  proof  of  meritorious  services  ;  but  the  slave  must  remove 
out  of  the  limits  of  the  state.  And  the  rights  of  creditors  are 
preserved.  Similar  provisions  are  to  be  found  in  the  other  states. 
1  Rev.  Code  of  Viginia,  p.  436. ;  Rev.  Code  of  Mississippi,  p. 
385.,  &c. 

When  it  is  considered  that  slaves  are  a  peculiar  species  of  pro 
perty,  it  will  not  excite  surprise  that  laws  are  necessary  for  their 
regulation,  and  to  protect  society  from  even  the  benevolence  of 
slave  owners,  in  throwing  among  the  community  a  great  number 
of  stupid,  ignorant,  and  vicious  persons,  to  disturb  its  peace,  and 
to  endanger  its  permanency. 

The  right  of  society  to  regulate  and  control  the  ownership  of 
this  kind  of  property  may  be  justified  on  the  same  grounds  as 


388  SLAVERY. 

some  other  species  of  property.  No  one  can  doubt  the  right  of 
individuals  to  acquire,  possess,  and  sell  gun  powder.  But  if  the 
possessor  chooses  to  take  it  to  his  house  or  store,  in  a  city  or  popu 
lous  town,  the  public  become  interested,  and  will  restrain  him 
within  reasonable  and  proper  limits.  In  New  York,  Philadelphia, 
Baltimore,  and  other  populous  places,  this  property,  as  an 
article  of  commerce,  is  regulated  (as  to  the  quantity  to  be  kept  in 
the  city,)  by  the  public  laws.  And  the  constitutionality  of  those 
laws  cannot  be  doubted.  So  of  slaves.  The  owner  may  keep  as 
many  as  he  pleases,  but  if  he  emancipates  them,  and  turns  them 
loose  upon  society,  they  have  a  right  to  protect  themselves  against 
his  improvidence,  or  even  his  benevolence  and  generosity.  They 
have  a  right  to  declare  the  act  illegal  or  to  restrain  it  within  such 
bounds  as  shall  secure  their  safety. 


(XX.)     OF  SUITS  FOR  FREEDOM* 

(A)       OF    THE    ACTION. 
1. 

MIMA  QUEEN  AND  CHILD  v.  HEPBURN.     Feb.   T.  1813* 
7  Cranch's  Rep.  290. 

The  rule  of  Held  by  the  court,  that  there  is  no  legal  distinction  between  the 
suits^for111  assertion  of  a  claim  for  freedom,  and  any  other  right,  which  will 
freedom  justify  the  application  of  a  rule  of  evidence  to  cases  of  this  descrir- 

tne  same  as  J 

in  other       tion,  which  would  be  inapplicable  to  general  cases,  in  which  the 
right  to  property  maybe  asserted. 


*  By  the  Revised  Code  of  Mississippi,  p.  388.  §  76.,  provision  is  made  that  a 
person  held  in  slavery  may  petition  the  court,  and  if  the  slave  be  in  the  possession  of 
the  master,  the  master  is  required  to  enter  into  a  bond,  conditioned  that  the  slave  shall 
be  forthcoming,  subject  to  the  order  of  the  court.  And  if  the  slave  be  out  of  the  pos 
session  of  the  master,  the  slave  must  enter  into  a  recognizance  with  security  to  make 
good  the  cost  and  damages.  And  where  the  master  fails  to  give  security  for  the  forth 
coming  of  the  slave,  the  court  is  empowered  to  order  the  slave  into  the  custody  of  the 
sheriff. 


OF  SUITS  FOR  FREEDOM.  389 


RANKIN  v.  LYDIA.      Fall   T.    1820.    2  Marshall's  Rep.   467. 

Held  by  the  Court,  Mills,  J.,  that  a  person  of  color,  entitled  to  Suit  for 

*  nifty     be 

be  free  by  the  municipal  laws  of  any  state,  where  he  has  been  do-  brought  in 
miciled,   (as  for  instance  being  taken  by  his  master  into  a  state 
which  prohibited  slavery,  to  reside)  may  prosecute  his  right  to  free 
dom  in  any  other  state.     It  is  a  vested  personal  right  to  freedom, 
which  exists  where  ever  he  is,  or  whereever  he  goes. 

3. 
EVANS    v.    KENNEDY.      Oct.    T.   1796.      1  Haywood's   North 

Carolina  Rep.  422. 

The  plaintiff  was  a  person  of  color,  who  claimed  his  freedom,    If  a  person 
and  was  detained  in  slavery  by  the  defendant.     The  plaintiff  and 


defendant  had  agreed  that  an  action  should  be  instituted  without  slavery, 

trespass 

process,  and  an  issue  made  up  to  try  the  fact  ;  and  some  doubts  and  false 

/.  i       /•     i        imprison- 

now  arising  in  regard  to  the  proper  form  of  action,  and  of  the  ment  is  the 


issue  to  be  made  up,  they  referred  it  to  the  court  to  direct  the 

proper  form  of  action  and  issue.  befrfe^  l° 

Per  Cur.  The  action  used  on  such  occasions  for  eight  or  ten 
years  past,  is  the  action  of  trespass  and  false  imprisonment,  to  which 
the  defendant  pleaded  that  the  plaintiff  is  a  slave,  and  cannot 
maintain  an  action  ;  and  this  the  plaintiff  replies,  he  is  not  a  slave  ; 
and  an  issue  is  made  up  upon  this  point,  and  tried  by  a  jury. 

4. 

CARrENTiER  v.  CoLEMAN.     1802.     2  Bay's.  Rep.  436. 

Held  by  the  court,  that  in  an  action  to  try  the  right  of  negroes  The  cmm 
to  freedom,  an  order  for  security  for  their  protection,  and  for  their  ™lU  S™n* 
forthcoming  at  the  trial,  maybe  made  at  the  commencement  of  the  for  the 

.         .  forthcom- 

suit,  or  at  any  time  during  its  pendency.  ing  of  the 

petition- 

5. 

MARIE  v.  AVART.     June  T.  1819.     6  Martin's   Louisiana  Rep. 

731. 

The  petition  stated,  that  the  plaintiff  is  a  slave  of  Nicholas  Lauve  ;  A   slave 
that  Erasmus  Robert  Avart  made  his  last  will,  by  which  he  direct-  may  sue  for 

her  free- 

ed,  that  immediately  after  his  decease,  his  testamentary  executor,  dom  ano- 
the  present  defendant,  should  purchase  the  plaintiff  and  her  child,  son"  than 
and  afterwards  emancipate  them  according  to  law  ;  that  Nicholas  her  master- 


390  SLAVERY. 

Lauve  is  willing  to  sell  the  plaintiff  and  her  child  for  a  reasonable 
price  ;  wherefore  the  plaintiff,  in  order  to  obtain  her  freedom,  and 
that  of  her  child  in  due  time,  prays  that  the  defendant  be  cited  to 
declare,  whether  he  accepts  the  said  executorship,  and  in  case  he 
does,  that  he  may  be  compelled  to  fulfil  the  will  of  the  testator  in 
the  premises  ;  and  in  case  he  declines  it,  some  proper  and  fit  per 
son  may  be  appointed  in  his  stead.  The  defendant  pleaded  the 
incapacity  of  the  plaintiff  to  stand  in  court,  as  she  was  the  slave, 
not  of  the  testator,  but  of  another.  The  parish  court  gave  judg 
ment,  that  "  the  plaintiff  be  maintained  in  her  right  to  institute 
this  suit ;  that  she  be  declared  entitled  to  obtain  her  freedom  ;  and, 
to  this  end,  that  the  defendant  in  this  cause  be  compelled  to  pur 
chase  the  plaintiff  and  her  child,  as  agreed  upon  by  her  master, 
and  emancipate  them,  agreeably  to  the  last  will  and  testament  of 
Erasmus  R.  Avari,  of  whom  he  is  executor.  And  further,  that 
he  pay  the  costs  of  the  suit."  From  this  judgment  the  defendant 
appealed. 

Per  Cur.  Martin,  J.  This  action  is  grounded  on  the  regula 
tions  in  our  civil  code  which  relate  to  slaves,  and  particularly  that 
part  of  them  which  authorizes  them  to  be  parties  in  civil  actions, 
either  as  plaintiffs  or  defendants,  when  they  have  to  claim  or  prove 
their  freedom. 

The  defendant  denies  the  plaintiff's  right  to  sue,  because,  by  her 
own  showing  in  the  petition,  she  is  indisputably  the  slave  of  another 
person,  and  does  not  claim  freedom  directly  against  the  defendant. 
As  she  is  not  opposed  by  her  acknowledged  master,  we  are  of 
opinion  that  she  has  a  right  to  maintain  her  action.  But  the  parish 
court  has  erred  in  deciding  definitively  in  favor  of  her  right  to  free 
dom.  It  is  therefore  ordered,  adjudged,  and  decreed,  that  the 
judgment  be  annulled,  avoided,  and  reversed,  and  that  the  case  be 
sent  back  with  instructions  to  the  judge  to  hear  the  parties  and  de 
cide  the  case,  after  an  investigation  of  its  merits. 

6. 
HARRIS  v.  CLARISSA  and  others.     March  T.  1834.     C  Yerger's 

Tennessee  Rep.  227. 

Where  a  This  was  an  action  of  trespass  and  false  imprisonment,  brought 
Sand  by  the  plaintiffs  below  to  establish  their  right  to  freedom.  The 
her  chil-  •  f  d  a  ver(]ict  in  favor  of  the  plaintiffs  ;  and  that  the  said 

dren    nave  ••      •>  , 

been   held  Clarissa  and  her  two  youngest  children  were  not  slaves, 
^slavery,  conteilded  for  the  plamtiff  jn  error,  that  a  joint  action  for  false  im- 

may  main- 


OF  SUITS  FOR  FREEDOM.  391 

prisonment  could  not  be  sustained,  even  if  all  the  plaintiff's  were  tain  a  joint 
capable  of  suing  separately  ;    as  it  was  a  several  wrong  done  to 


each.  *heir  free- 

do  in. 

Per  Cur.  Catron,  Ch.  J.  The  title  of  the  mother  and  children 
standing  together,  they  may  sue  together  for  their  freedom. 
1  Washington's  Rep.  233.  239.  There  is  nothing  in  the  objection 
of  misjoinder. 

7. 

DEMPSEY  v.  LAWRENCE.     June  T.   1821.     Gilmer's  Virginia 

Rep.  333. 

Dempsey  was  born  the  slave  of  one  David  Wallace,  and  descend-  The  chan- 
ed  to  his  son  William.     He  hired  himself  of  his  master  William  weS'a^ 
Wallace,  and  having  accumulated  the  sum  of  $100,  agreed  to  pay  common 

r   J    law  courts 

it,  and  $200  more  at  a  future  day  to  his  master,  provided  he  would  have  juris- 

emancipate  him.     The  proposal  was  accepted.     After  it  was  ac-  Suits°of 

cepted,  Wallace  insisted  that  Dempsey  should  find  some  one  to  be  ]?0aru£ges 

surety  for  the  payment  of  the  $200  ;  one  Bacon  agreed  to  become  dom;   and 

bound  for   the  payment,   and  executed  his  bond  to  Wallace.     In  case  pro- 

this  state  of  things,  one  Lawrence  took  the  place  of  Bacon,  agreed  ^f^  a 

to  pay  the  $200,  and  Dempsey  was  to  be  bound  to  him  for   it.  equitJ'  aP- 

.  point  coun- 

This  arrangement  was  made  in  concert  between  Bacon,  Wallace,  sel  to  pro- 
and  Lawrence.  Dempsey  paid  the  money  to  Lawrence  by  the  pau. 
instalments.  Laurence  then  went  to  North  Carolina,  and  pro-  Per- 
mised  Dempsey  if  he  would  go  with  him  he  would  emanci 
pate  him.  Dempsey  went  and  remained  two  years  ;  returned, 
and  lived  on  a  piece  of  land  adjoining  Lawrence,  always  acting 
as  a  freeman.  Lawrence  died,  and  his  widow  claimed  Demp 
sey  as  a  slave.  The  bill  prayed,  that  all  persons  be  enjoined 
from  molesting  or  selling  the  plaintiff  as  a  slave  ;  and  that  the 
widow  of  Lawrence  be  decreed  to  execute  a  deed  of  emancipation. 
The  defendant  (the  widow  of  Lawrence)  never  answered  the  bill, 
and  Dempsey's  counsel  asked  a  final  decree.  Chancellor  Nelson 
was  wilting  to  continue  the  injunction  until  Dempsey  could  assert 
his  freedom  in  a  regular  manner  in  a  court  of  law  ;  but  it  being 
insisted  that  he  should  make  a  final  decree,  he  dissolved  the  in 
junction,  and  dismissed  the  bill  ;  and  an  appeal  was  taken. 

By  the  Court.  The  court  of  chancery  had  jurisdiction  of  the 
case,  and  might  have  proceeded  to  a  final  decree,  after  the  proper 
preliminary  steps  ;  it  might  have  assigned  counsel  to  the  appellant, 
and  have  conformed  to  the  other  provisions  of  the  act  prescribing 
the  mode  of  conducting  suit  for  freedom.  The  decree  is  there- 


392  SLAVERY. 

fore  reversed,  and  the  cause  is  to  be  sent  back  to  the  chancery  court 
of  Williamsburgh,  with  directions  to  the  court  to  appoint  counsel 
for  the  appellant,  and  to  proceed  to  a  final  decree  on  the  merits. 


(B.)    OF  EVIDENCE. 

1. 
MARY  v.  MORRIS  et  al.     Aug.  T.  1834.     7  Louisiana  Rep.  135. 

In  a  suit        Held  by  the  court,  that  in  a  suit  for  freedom,  when  the  question 

dom  The"  is  libera  vcl  non,  and  the  plaintiff  being  from  color,  and  in  the  ac- 

6om/i7lies  tua^  P°ssessi°n  °f  tne  defendant,  is  presumed  to  be  a  slave,  the 

on  the  burden  of  proving  her  freedom  devolved  on  her. 

plaintiff  if 
he  be  black. 

2. 
Fox  v.  LAMBSON.     May  T.  1826.     3  Halst.  Rep.  275. 

So  in  Pw  CUT'     Ewing,  Ch.  J.     It  is  a  settled  rule  in  our  courts,  on 

New-Jer-     questions  of  evidence,  that  the  black  color  is  proof  of  slavery ; 

Gibbons  v.  Morse,  2  Halst.  Rep.  264.;  which  must  be  overcome 

before  the  witness  can  be  received. 

3. 

Fox  v.  LAMBSON.     May  T.  1826.     3  Halst.  Rep.  275. 

But  the          Held  by  the  court,  that  where  a  person  was  reputed  to  be  free, 
FionUmay    ancl  f°r  more  than  20  years  had  been  in  the  full  and  actual  en  joy- 
be  rebut-      ment  of  freedom,  is  sufficient  evidence  to  overcome  the  presump 
tion  of  slavery  arising  from  color. 

4. 

HUDGINS  v.  WRIGHTS.  Nov.  T.  1806.  1  Hen.  and  Munf.  334. 
Onus  pro-  Appeal  from  the  high  court  of  chancery.  The  complainants 
whorfm?tn  in  their  bill  asserted  their  right  to  freedom,  as  having  descended 
lies-  in  the  maternal  line  from  a  free  Indian  woman,  called  Butterwood 

Nan.  On  the  hearing,  the  chancellor  perceiving,  from  his  own 
view,  that  the  youngest  of  the  claimants  was  perfectly  white,  and 
that  there  were  gradual  shades  of  difference  of  color  between  the 
grandmother,  mother,  and  grandaughter,  (all  of  whom  where  be 
fore  the  court,)  and  considering  the  evidence  in  the  cause,  deter 
mined  that  they  were  entitled  to  their  freedom  ;  and,  moreover,  on 
the  ground  that  freedom  was  a  birth-right,  it  was  a  general  prin 
ciple,  that  whenever  one  person  claims  to  hold  another  in  slavery 


OF  SUItS  FOR  FREEDOiM.  393 

the  onus  prolandi  lies  on  the  claimant ;    and  he  decreed  in   favor 
of  the  claimants. 

Per  Cur.      Tucker,  J.     In  aid  of  the  other  evidence  the  chan 
cellor  decided  upon  his  own  view.     This  with  the  principles  laid 
down   in  the   decree  has  been  loudly  complained  of.     Nature  has 
stamped  upon  the  African  and  his  descendants  two  characteristic 
marks,  besides  the  difference  of  complexion,  which  often  remain 
visible  long  after  the  characteristic  distinction  of  color  either  dis 
appears  or  becomes  doubtful  :  a  flat  nose  and  woolly  head  of  hair. 
The  latter  of  these  characteristics  disappears  the  last  of  all.     And 
so   strong  an  ingredient  in  the  African  constitution  is  this  latter 
character,  that  it  predominates  uniformly  where   the  party  is  in 
equal  degree  descended  from    parents  of  different  complexions, 
whether  whites  or  Indians,  giving  to  the  jet  black  hair  of  Indians 
a  degree  of  flexure  which  never  fails  to  betray  that  the  party  dis 
tinguished  by  it  cannot  trace  his  lienage  purely  from  the  race  of 
native  Americans.     Its  operation  is  still  more  powerful  where  the 
mixture  happens  between   persons    descended   equally  from  Eu 
ropeans  and  African  parents.     So   pointed  is  this  distinction  be 
tween  natives  of  Africa  and  the  aborigines  of  America,  that  a  man 
might  as  easily  mistake  the  glossy  jetty  clothing  of  an  American 
bear  for  the  wool  of  a  black  sheep,  as  the  hair  of  an  American  In 
dian  for  that  of  an  African.    Upon  these  distinctions,  as  connected 
with  our  laws,  the  burden  of  proof  depends.     Upon  these  distinc 
tions  not  unfrequently  does  the  evidence  given  upon  trials  of  such 
questions  depend,  as  in  the  present  case,  where  the  witnesses  con 
cur  in  assigning  the  hair  of  Hannah,  the  daughter  of  Butterwood 
Nan,  the   long  straight  black  hair  of  the  native  aborigines  of  this 
country.     That  such  evidence  is  both  admissible  and  proper,  I 
cannot  doubt.     That  it  may  sometimes  be  necessary  for  a  judge  to 
decide  upon  his  own  view,  I  think  the  following  case  will  evince; 
Suppose  three  persons  ;   a  black  or  mulatto  man  or  woman  with 
a  flat   nose  and   woolly  head ;  a  copper-colored,  with  long  jetty 
black  straight  hair  ;    and  one  with  a  fair  complexion,  brown  hair, 
not  woolly,  or  inclining  thereto,  with  a  prominent  Roman  nose, 
were  brought  together  before  a  judge  on  a  habeas  corpus,  on  the 
ground  of  false  imprisonment  and  detention  in  slavery;  that  the 
only  evidence  the  person  detaining  them  in  his  custody  could  pro 
duce  was  an  authenticated  bill  of  sale  from  another  person,  and  that 
the  parties  themselves  were  unable  to  produce  any  other  evidence 
50 


894  SLAVERY. 

concerning  themselves,  whence  they  came,  &c.  How  must  a  judge 
act  in  such  a  case?  I  answer,  he  must  judge  from  his  own  view. 

.  He  must  discharge  the  white  person  and  the  Indian  out  of  custody, 
taking  surety,  if  the  circumstances  of  the  case  should  appear  to 
require  it,  that  they  should  not  depart  the  state  within  a  reason 
able  time,  that  the  holder  may  have  an  opportunity  of  asserting 
and  proving  them  to  be  lineally  descended  in  the  maternal  line 
from  a  female  African  slave ;  and  he  must  redeliver  the  black  or 
mulatto  person  with  the  flat  nose  and  woolly  hair  to  the  person 
claiming  to  hold  him  or  her  as  a  slave,  unless  the  black  person 
or  mulatto  could  procure  some  person  to  be  bound  for  him  to  pro 
duce  proof  of  his  descent,  in  the  maternal  line,  from  a  free  female 
ancestor.  But  if  no  such  caution  should  be  required  on  either  side, 
but  the  whole  case  left  to  the  judge,  he  must  deliver  the  farmer 
out  of  custody,  and  permit  the  latter  to  remain  in  slavery,  until  he 
could  produce  proof  of  his  right  to  freedom.  This  case  may  show 

how  far  the  onus  grobandi  may  be  shifted  from  one  party  to  the 
other. 

5. 

HUDGINS  v.  WRIGHTS.  Nov.  T.  1896.  1  Hen.  &  Munf.  Rep.  134, 

The  onus,         Per  Cur.    Tucker,  J.    All  white  persons  are  and  ever  have  been 
iUies  °       ^ree  m  *kis  country.      If  one  evidently  white  be,  notwithstanding" 
claimed  as  a  slave,  the  proof  lies  on  the  party  claiming  to.  make 
out  the  other  his  slave. 

Per  Roane,  J.  In  the  case  of  a  person  visibly  appearing  to  be  a 
negro,  the  presumption  is  in  this  country,  that  he  is  a  slave,  and  it 
is  incumbent  on  him  to  make  out  his  right  to  freedom  ;  but  in  the 
case  of  a  person  visibly  appearing  to  be  a  white  man,  or  an  Indian, 
the  presumption  is  that  he  is  free,  and  it  is  necessary  for  his  adver 
sary  to  show  that  he  is  a  slave, 

In    a     suit 

d^'hear-  JENKINS  v.   TOM  et  al.     Fall  T.  1792,     1   Wash.  Rep.   123. 

say    evi 
dence  is  Held  by  the  court,  that  in  a  suit  for  freedom,  hearsay  evidence 

u>  "prove6    is  admissible  to  prove  the  pedigree  of  the  plaintiff, 

pedigree. 


OF  SUITS  FOR  FREEDOM.  395 

7. 
WALLS  v.  HEMSLEF  et  al.    June  T.  1817.     4  Har.  &  Johns. 

Rep.   243. 

The  court  held,  that  the  reputation  of  the  neighborhood,  that  General 
the  mother  of  the  petitioner  for  freedom  was  a  free  woman,  is  not  "j^atle°v^ 
admissible  evidence  for  the  plaintiff  in  a  trial  for  freedom.     Nor  dence    of 
are  the  declarations  of  a  person  since  dead,  but  at  the  time  holding 
the  mother  of  the  petitioner  for  freedom  in  slavery,  that  she  was  a 
slave,  admissible  evidence. 

8, 
LEMON  v.  REYNOLDS,  ADM'R  of  Holmes.  April  T.  1817.  5  Munf* 

Rep.  552. 
The  court  held,  that  in  a  suit  for  freedom  the  validity  of  the  will  The  validi- 

tv  of  a  re- 

under  which  the  plaintiff  claims,  ought  not  to  be  questioned,  (the  corded 


same,  or  a  copy  thereof,  the  original  being  destroyed,)  the  will  ha-  ^ 
vinar  been  admitted  to  record,  as  and  for  the  last  will  and  testament  d°m  is 

claimed 

by  the  proper  court,  whose  judgment  remains  unappealed  from  ;  cannot  be 
and  the  validity  of  such  will  not  being  contested  by  a  bill  in  equity.  2d.estl 

9. 

VAUGHAN  v.  PHEBE,  a  woman  of  color.    Jan.  T.  1827.    Martin 
&  Yerger's  Tennessee  Rep.  1. 

Phebe  sued  Vaughan,  in  the  court  below,  in  an  action  of  tres-  Reputa- 
pass  and  false  imprisonment.     Vaughan  pleaded  that  Phebe  was  a  hearsa'    is 
slave,  and  his  property.     To  which  plea  Phebe  replied,  denying  admissible 

she  was  a  slave,  and  the  property  of  Vaughan.     Upon  which  re-  of  descent 

T  •    •       j  from  In- 

phcation  issue  was  joined.  dian  an^ 


At  the  trial  of  the  cause  in  the  court  below,  the  plaintiff  offered  a^^a'  be 
to  read  in  evidence,  the  depositions  of  Seth  R.  Pool,  Martha  used  as  a 
Jones,  and  Phebe  Tucker.  The  defendant,  by  his  counsel,  ob-  claJm°o  f 


jected  to  the  competency  of  the  evidence  contained  in  Poole's 
deposition,  and  to  so  much  of  Martha  Jones'  and  Phebe  Tucker's  freedon*' 
as  related  to  hearsay  and  information  from  others.  The  evidence 
of  Pool,  as  set  out  in  his  deposition  is,  "  that  he  had  been  acquainted 
with  Phebe  for  fifty  years,  and  that  she  was  always  said  to  be  of 
Indian  extraction.  That  he  was  also  acquainted  with  her  mother, 
called  BecJ^  who  was  also  called  an  Indian  by  descent  ;  and  he 
believes  she  was  the  daughter  of  Moll,  the  property  of  Wm.  Jones. 
That  Phebe  had  been  deprived  of  her  eye  by  a  ringworm.  That  Beck, 


396  SLAVERY. 

her  mother,  was  sister  to  Tab,  the  property  of  Benjamin  Tucker  who 
had  always  claimed  her  freedom,  and  as  he  believed  had  got  her  free 
dom  by  due  course  of  law.     That  said  Phebe  is  descended  from  an 
Indian  mother,  and  was  always  considered  free.  That  said  Benja 
min  or  Littlebury  Tucker  was  sued  by  Tab,  the  maternal  aunt  of 
Phebe,  and  sister  to  Beck  ;  and  she  recovered  her  freedom  in  con 
sequence  of  her  having  descended  from  an  Indian  mother,  who  was 
free.     That  he  had  often  heard  that  Murcne  was  the  grandmother 
of  Beck  and  Tab,  and  that  she,  Murene,  was  remarkably  old,  and 
lived  about  with  her  children  and  grand-children,  and  was  always 
reputed  an  Indian,   and  was  free.     That  Murene    was  a   copper 
color,  and  that  Abner,  the  brother  of  Phebe,  sued,  as  he  was  in 
formed  and  believed,  Thomas  Hardeway  for  his  freedom,  and  was 
killed  by  said  Hardeway ;  and  that  Phebe  had  often  solicited  him 
to  undertake  to  procure  her  freedom  ;  but  from  the  long  acquain 
tance  he  had  with  her  master  he  would  not  do  it."     Those  parts 
of  the  depositions  of  Martha  Jones  and  Phebe  Tucker  objected  to 
are,  "that  they  knew  many  years  ago,  a  colored  woman  named 
Phebe,   in  the   possession   of  Thomas  Hardeway  of  Dinwiddie 
county,  Virginia  ;  she  having  lost  an  eye,  as  was  said,  by  a  tetter 
or  ringworm.     They  also  knew  Phebe's  mother,  who  was  named 
Beck.     Beck  was  always  said  to  be  sister  to  Tab,  by  the  mother's 
side.      That  they  had  understood  that  Phebe  was  brought  to  Ten 
nessee  by  Abraham  Vaughan.     That  Tab  had  obtained  her  free 
dom  by  due  course  of  law,  and  that  they  believed  all  Phebe's  re 
lations  in  those  parts  had   also  obtained  their  freedom  upon  the 
plea  of  their  having  descended  from  an  Indian  ancestor.     They 
always  understood  that  Molly  Moore,  (formerly  Evans,)  had  one 
of  the  family  named  Minor,  and  several  others  who  had  since  all 
got  their  freedom,  as  will  appear  of  record. 

Per  Cur.  Crabb,  J.  The  defendant  in  error  brought  a  suit 
against  the  plaintiff  in  error,  in  trespass.  The  plaintiff  in  error 
pleaded,  that  Phebe  was  a  slave,  and  his  property.  Whether  she  was 
free  or  a  slave  was  the  question.  The  cause  was  tried  before  a  cir 
cuit  judge  in  Sumner  county,  and  a  verdict  returned  by  the  jury 
for  Phebe.  A  judgment  was  entered,  "that  the  plaintiff  recover 
against  the  defendant  her  freedom  and  the  damages,"  &c.  Vaughan 
prayed  an  appeal,  in  the  nature  of  a  writ  of  error,  to  this  court. 

At  the  trial,  Vaughan,  by  his  counsel,  objected  to  the  reading  of 
the  depositions  of  Seth  P.  Pool,  and  so  much  of  those  of  Martha 


OF  SUITS  FOR  FREEDOM.  397 

Jones  and   Phebe  Tucker,  as  related  to  hearsay,  or  information 
from  others.     Some  of  us  have  had  much  difficulty  in  coming  to 
a  conclusion  satisfactory  to  our  minds  as  to  some   of  the  points 
made  in  this  cause.     The  peculiar  value  of  the  right  claimed,  and 
the   improbability  of  such  a  right  being  successfully  asserted  in 
many  instances,  except  by  such  evidence  as  that  which  has  been 
resorted  to  on  this  occasion,  on  the  one  hand  ;  and  on  the  other,  the 
want  of  entire  coincidence  between  what  has  been  heretofore  done 
by  judicial  tribunals,  whose  decisions  are  precedents  for  this,  and 
what  we  are  now  asked  to  do,  added  to  the  imposing  character  of 
two  decisions,  both  of  which,  and  one  especially,  would  seem  to 
militate   against  the  introduction  of  the  evidence  received  in  the 
court  below,  have  been  the  causes  of  that  difficulty.     To  the  argu 
ments  made,  the  decided  cases  produced  on  both  sides,  and  some 
others,  a  laborious  and  anxious  examination   has  been  given.     It 
only  remains  for  us  to  make  known  some  of  the  considerations 
that  have  influenced  us,  and  to  announce  the  result  to  which  we 
have  been  conducted,  in  the  best  exercise  of  judgment  of  which 
we  are  capable.     We  shall  not  undertake  to  remark  in  detail  upon 
either  the  books  or  the  arguments  relied  on  at  the  bar.     What  the 
circuit  said,  as  to  the  effect  of  the  evidence,  or  the  purposes  for 
which  it  was  received,  or  what  other  testimony  was  brought  for 
ward  to  support  the  verdict,  does  not  appear.     The  questions  are, 
therefore,  simply  as  to  the  admissibility  of  the  depositions,  and  the 
verdict  and  judgment  for  any  legal  purpose.     Let  the  first  ques 
tion  be,  did  the  court  below  err  by  admitting  the  depositions  1 

That  so  much  of  them  as  relates  to  pedigree  is  legal  evidence, 
was  admitted  by  the  counsel  for  Vaughan  in  argument. 

This  is  certainly  a  matter  of  long  standing,  such  as  those  where 
courts  "  from  necessity,  and  on  account  of  the  great  difficulty  of 
proving  remote  facts  in  the  ordinary  manner  by  living  witnesses," 
have  been  in  the  habit  of  receiving  hearsay  and  reputation  as  to 
pedigree.  And  I  suppose  the  proof  has  been  made  by  the  best 
procurable  witnesses,  taking  into  view  the  lapse  of  time,  the  remo 
val  of  the  plaintiff  below  into  this  from  another  and  distant  govern 
ment,  and  other  circumstances.  Such  proof  is  generally  expected 
from  members  of  the  family  whose  genealogy  is  in  question,  or 
others,  who  from  their  situation,  would  be  likely  to  possess  the  re 
quisite  knowledge.  A  brief  examination  will  manifest,  that  much 
more  of  the  offered  evidence  is  covered  by  the  established  rule  in 
relation  to  pedigree,  than  the  counsel  for  Vaughan  seemed  to  sup- 


398  SLAVERY. 

pose.  Take  the  question  of  pedigree  to  be  simply  a  question  from 
what  ancestors  an  individual  derived  his  birth  ;  which  is  a  much 
more  confined  arid  limited  sense  than  is  often  practically  applied 
to  it.  Suppose  that  Phebe,  instead  of  alleging,  as  she  does  in  this 
case,  that  she  is  descended  from,  or,  in  the  language  of  the  witness, 
has  her  extraction  from  a  long  line  of  Indian  ancestors,  had  as 
sumed  the  position,  that  she  was  descended  from  a  maternal  great 
grandmother,  named  A.  B.,  she  could  not  prove  this  by  hearsay, 
or  reputation,  after  having  first  established  the  freedom  of  A.  B., 
or  with  the  intention  of  afterwards  establishing  it?  No  one  will 
deny  that  she  could.  Why  can  she  not  with  equal  propriety  show 
in  the  same  manner,  that  she  is  maternally  descended  from  the 
Indians  of  America,  after  having  first  shown,  or  intending  other 
wise  to  demonstrate,  that  those  Indians  were  either  all  free,  or  that 
they  were  at  least  prima  facie  to  be  presumed  free  1  It  may  be 
here  remarked,  that  if  Phebe  be  shown  to  be  descended  from 
Indian  ancestors  in  the  maternal  line,  all  doubt  will  cease  as  to  her 
being  at  least  prima  facie  free.  Had  the  residence  of  her  ances 
tors  always  been  in  this  state,  we  apprehend  the  fact  of  such 
descent  would  be  conclusive  evidence  of  her  freedom. 

But  her  ancestors  came,  or  were  brought  into  Virginia,  and  the 
plaintiff  below  lived  in  that  government  until  she  was  some  years 
since  brought  here.  The  court  of  appeals  of  that  state,  who  must 
be  presumed  to  have  construed  their  own  statutes  aright,  say, 
(Hudgins  v.  Wrights,  1  Hen.  &  Munf.  Rep.  139.,)  that  the  act  of  as 
sembly  of  Virginia  of  1691  repealed  the  acts  of  1679  and  1682. 
And  we  heartily  concur  with  them  in  the  opinion,  that,  although  an 
Indian  taken  into  Virginia,  between  1679  and  1691,  might  be  a 
slave,  yet  "  all  American  Indians,  and  their  descendants,  arepiima 
facie  free,  and  that  where  the  fact  of  their  nativity  and  descent,  in 
a  maternal  line,  is  satisfactorily  established,  the  burthen  of  proof 
thereafter  lies  upon  the  party  claiming  to  hold  them  as  slaves." 
Let  us  return  to  the  doctrine  of  hearsay  evidence,  in  cases  of  pedi 
gree  :  hearsay  or  reputation,  under  the  rule  with  regard  to  pedi 
gree,  is  not  confined  to  the  fact  of  descent  from  a  specified  ances 
tor, or  a  tribe  or  nation  of  ancestors.  It  may  be  received  to  show 
the  truth  of  another  fact,  from  which  such  descent  can  be  rea 
sonably  inferred.  "  Thus,"  says  a  popular  writer  on  evidence, 
(Phillip's  Ev.  168.)  "  declarations  of  deceased  members  of  the  fa 
mily  are  admissible  evidence  to  prove  relationship  :  as  who  was 


OF  SUITS  FOR  FREEDOM.  399 

a  person's  grandfather,  or  whom  he  married,  or  how  many  chil 
dren  he  had,  or  as  to  the  time  ot  a  marriage,  or  of  the  birth  of  a 
child,  and  the  like,  of  which  it  cannot  be  reasonably  presumed  that 
better  evidence  is  to  be  procured."  See  Bull.  N.  P.  294.;  3.  Star- 
kie's  Evidence,  1113.  From  this  examination  it  appears  to  us  clear, 
that  the  circuit  court  did  not  err  in  admitting  those  parts  of  the 
depositions  which  speak  of  any  of  the  persons  where  genealogy  is 
in  question,  having  been  called  of  Indian  extraction,  "  called  of 
Indian  descent,"  &c.,  which  is  tantamount  to  saying,  they  were 
commonly  reputed  to  be  descended  from  the  Indians,  &c.  &c.  So, 
also,  that  the  court  did  not  err  in  receiving  the  hearsay  as  to  Mu- 
rene  being  reputed  an  Indian,  &c. 

But  these  depositions  contain  statements  of  the  common  repu 
tation  in  the  state  of  Virginia,  that  some  of  the  persons  whose  free 
dom  were  in  question  were  free.  And  hence  arises  the  most  dif 
ficult  and  embarrassing  question  :  whether,  when  it  becomes  ne 
cessary  to  inquire  into  occurrences  of  a  remote  period,  common  re 
putation  is  admissible  to  prove  the  right  of  freedom  ?  From  the 
nature  of  the  remedy  provided,  and  for  a  long  time  sanctioned  for 
the  enforcement  of  the  right  of  freedom,  there  must  necessarily 
often  be  inquiries  into  the  transactions  of  remote  periods.  This 
remedy,  as  is  well  known,  is  the  action  of  trespass.  Whenever 
necessary  to  bring  suit,  there  has  of  course  been  a  continuation  of 
the  trespass  up  to  the  time  or  near  the  time  of  commencing  it.  The 
act  of  limitations  would  consequently  be  no  bar.  Kence  results  the 
necessity  of  often  introducing  proof  of  a  kind  that  would  be  unusual 
and  unnecessary  in  ordinary  cases.  And  partly  from  this  cause,  this 
case  is  assimilated  to  cases  which  have  been  allowed  an  exemption 
from  the  strict  rule  prohibiting  all  sorts  of  hearsay  evidence.  It  may 
be  added,  without  our  intending  to  give  an  opinion  either  way,  as 
to  the  correctness  of  the  position,  that  very  respectablejudges  have 
maintained  the  broad  position,  without  allusion  to  the  form  of  ac 
tion,  that  length  of  time  does  not  bar  the  right  of  freedom  in  the 
same  way,  and  to  the  same  extent,  as  in  other  cases.  See  Judge 
Racine's  opinion,  in  Hudgins  v.  Wrights,  ubi  supra. 

How  is  an  individual  in  this  county,  who  is  unfortunate  enough 
to  have  a  woolly  head  and  a  colored  skin,  to  prove  that  he  is  free  1 
Not  being  white,  nor  copper  colored,  nor  having  straight  hair  and 
a  prominent  nose,  the  presumption  probably  is,  that  he  is  a  slave. 
See  Hudgins  v.  Wrights,  ubi  supra.  Contrary  to  the  general  rule, 


400  SLAVERY. 

he  who  Is  charged  with  having  trespassed  upon  his  person,  pleads 
an  affirmative  plea,  and  yet  need  not  prove  it.  He  says,  in  justifi 
cation  of  his  trespass,  that  the  plaintiff  is  a  slave  ;  and  yet,  on  that 
.  plaintiff  is  devolved  the  onus  probandi  to  show  himself  a  freeman. 
How  is  he  to  show  it  ?  He  may,  perhaps,  procure  testimony  that 
he,  or  some  ancestor,  was  for  some  time  in  the  enjoyment  of  free 
dom  ;  that  he  has  acted  as  a  freeman  ;  that  he  has  been  received 
as  a  freeman  into  society  ;  and  very  soon  will  find  himself  under 
the  necessity  of  increasing  in  proportion  to  the  distance  he  has  to 
travel  into  time  past,  for  want  of  other  evidence,  to  use  hearsay  ; 
that  he,  or  his  ancestor  was  commonly  called  a  freeman,  or  com 
monly  reputed  a  freeman,  or,  in  other  words,  evidence  of  common 
reputation.  And  why  should  he  not  1  Is  it  a  concern  of  so  little 
moment,  that  the  law  in  its  benignity  ought  to  refuse  those  aids  for 
its  support  and  protection  that  have  been  so  exuberantly  extended 
in  analogous  cases  1  Is  it  of  less  importance  than  the  right  of 
digging  stone  upon  the  waste  of  the  lord  of  the  manor  1  Moor- 
wood  v.  Wood,  14  East's  Rep.  327.  Or  the  right  of  the  lord  to  take 
coals  from  under  the  lands  of  those  holding  under  him  ?  Barnes 
v.  Mawson,  1  Maul.  &  Selw.,  77.  Or  a  right  to  have  a  sheepwalk 
over  a  piece  of  land  1  3  Starke's  Ev.  1 209.  Or  a  right  of  way  over 
a  piece  of  land  ?  Bull.  N.  P.  295.  Or  to  a  modus,  by  which  sixpence 
an  acre  more  should  be  paid  in  lieu  of  small  tithes  1  Harwood 
v.  Sims,  Wright's  Ex.  Rep.  112.  These  are  a  few  out  of  many 
cases.  But  it  is  said  these  rights,  franchises,  £c.,  which  in 
England  are  permitted  to  be  established  by  hearsay,  or  common  re 
putation,  are,  or  savor  of  a  public  character  ;  and  therefore  the 
public,  where  this  reputation  is  to  be  formed,  will  be  more  apt  to  pos 
sess  a  knowledge  of  their  existence,  &c.  We  put  it  to  the  candid 
and  the  enlightened,  whether  the  right  to  freedom  has  not  in  this  re 
spect  very  much  the  advantage  over  many  of  those  rights  where 
such  evidence  is  every  day  received  in  the  English  courts?  Indeed, 
it  is  no  light  matter  to  be  a  freeman  in  these  United  States. 

Freedom  in  this  country  is  not  a  mere  name — a  cheat  with  which 
the  few  gull  the  many.  It  is  something  substantial.  It  embraces 
within  its  comprehensive  grasp,  all  the  useful  rights  of  man  ;  and 
it  makes  itself  manifest  by  many  privileges,  immunities,  external 
public  acts.  It  is  not  confined  in  its  operations  to  privacy,  or  to 
the  domestic  circle.  It  walks  abroad  in  its  operations — transfers 
its  possessor,  even  if  he  be  black,  or  mulatto,  or  copper  colored, 
from  the  kitchen  and  the  cotton  field,  to  the  court  house  and  the 


OF  SUITS  FOR  FREEDOM.  401 

election  ground,  makes  him  talk  of  magna  charta  and  the  consti 
tution  ;  in  some  states  renders  him  a  politician — brings  him  ac 
quainted  with  the  leading  citizens — busieshimself  in  the  political  can 
vass  for  office — takes  him  to  the  ballot  box  ;  and,  above  all,  secures 
to  him  the  enviable  and  inestimable  privilege  of  trial  by  jury.  Can 
it  be  said,  that  there  is  nothing  of  a  public  nature  in  a  right,  that 
thus,  from  its  necessary  operation,  places  a  man  in  many  respects 
on  an  equality  with  the  richest,  and  the  greatest,  and  the  best  in  the 
land,  and  brings  him  in  contact  with  the  whole  community  ] 

Can  it  be  said,  that  common  reputation  is  no  evidence  of  a  right 
producing  so  many  effects  relative  in  their  character,  to  that  very 
society  where  the  common  understanding,  report,  or  reputation,  is 
required  to  exist.  Can  it  be  said,  that  the  community  or  neighbor 
hood,  as  the  case  may  be,  the  "public"  around  a  man  will  too 
readily  give  credence  to  a  claim,  by  which  the  individual  who 
makes  it,  obtains  among  themselves  so  high  a  comparative  eleva 
tion  ]  If  those  around  him  have  interest  or  prejudice,  they  will 
usually  be  against  his  claim.  It  is  difficult  to  suppose  a  case  where 
common  reputation  would  concede  to  a  man  the  right  of  freedom, 
if  his  right  were  a  groundless  one.  If  such  a  case  be  imagined,  it 
will  most  probably  be  an  extreme  one;  and  we  must  bear  in  mind, 
that  when  the  evidence  we  are  speaking  of  is  received,  it  is  not  re 
garded  as  conclusive ;  it  is  to  be  weighed,  encountered,  and  com 
pared  with  other  evidence ;  and  ultimately  to  have  no  more  effect 
than,  after  full  examination,  the  jury  shall  be  disposed  to  give  it. 
I  cannot  see  how  dangerous  consequences  are  likely  to  result  from 
its  admission.  Slavery,  in  our  sense  of  the  word,  is  not  known  in 
England.  Such  a  right  of  franchise,  therefore,  as  an  exemption 
from  slavery  existing  around  them,  has  no  place  there,  and  rules 
with  regard  to  it  are  unknown  to  their  code.  The  right  to  free 
dom,  in  this  relation,  as  well  as  the  mode  of  proceeding  for  its  as 
sertion,  is  of  American  growth.  Courts  cannot  be  expected  to 
shut  their  eyes  on  this  important  circumstance.  Let  not  gentle 
men  object,  that  prescriptive  rights  are  regarded  as  null  in  Eng 
land,  or,  at  farthest,  not  more  than  prima  facie  good,  unless  they 
have  had  existence  time  whereof  the  memory  of  man  is  not  to  the 
contrary,  and  unless  the  claimant  can  bring  himself  within  the 
strict  rule  as  to  recent  enjoyment ;  and  that,  therefore,  we  ought 
not  to  liken  the  right  of  freedom  to  them,  as  we  cannot  preserve 
the  parallel  throughout.  We  must  ask  them  to  recollect,  that  we 

are  not  relying  on  cases  as  to  prescription,  &c.,  as  precedents  in  this 
51 


402  SLAVERY. 

cause,  but  that  we  are  endeavoring  by  analogy  to  ascertain  what  is 
the  rule  in  a  new  case,  in  a  new  sort  of  ac  ion,  as  to  a  new  sort  of 
right.  Nullum  simile  est  idem;  or,  in  the  language  of  the  supreme 
'court  of  the  United  States,  in  the  case  of  Nicholls  and  Webb,  we 
are  endeavoring  to  "  adapt  the  rule  of  evidence  to  the  actual  con 
dition  of  men,"  believing  that  in  this  sense  it  must  "  expand  ac 
cording  to  the  exigencies  of  society."  Common  reputation  may 
be  proved  in  cases  of  custom,  prescription,  &c.  It  must  be  repu 
tation  as  to  the  right,  privilege,  franchise,  &c.,  claimed,  and  not 
hearsay  evidence  as  to  any  particular  fact  from  which  the  right,  &c., 
might,  be  inferred  ;  contrary  to  what  is  certainly  the  rule  in  cases 
of  pedigree  and  boundary.  They  stand  in  this  respect  upon  differ 
ent  grounds.  Peake's  Ev.  13.  As  in  cases  of  the  former  kind, 
it  has  been  said,  so  I  would  say  in  the  instance  before  us,  you  may 
prove  the  right  to  freedom  by  common  reputation  as  to  the  exist 
ence  of  the  general  right.  But  you  may  not  introduce  any  evi 
dence  of  hearsay,  or  reputation,  as  to  any  particular  fact. 

The  right  to  freedom  is  believed  not  to  be  a  particular  fact  in 
the  sense  in  which  the  latter  expression  is  used  in  the  books.  It 
consists  in  the  exercise  and  enjoyment  of  multifarious  exemptions, 
privileges,  and  rights.  In  its  exercise  and  enjoyment  it  produces 
many  particular  facts.  So  far  as  the  cases,  produced  in  Cranch  and 
Wheaton,  vary  from  the  above  principle,  if  they  do  so,  they  have 
not  the  approbation  of  our  judgments ;  and  we  must  dissent  from 
them.  The  cases  cited  from  Washington,  Henning  &  Munford's 
Reports,  go  strongly  to  support  the  view  we  have  taken  of  the  sub 
ject  ;  and  we  concur  with  the  reasoning  of  the  court  in  those 
cases.  While,  however,  we  place  much  reliance  on  the  cases  de 
cided  in  Virginia,  we  are  by  no  means  prepared  to  subscribe  to 
the  correctness  of  the  doctrine  urged  with  earnestness  on  the  part 
of  the  defendant  in  error  :  that  the  decisions  of  the  court  of  Vir 
ginia,  as  they  are  binding,  and  demonstrate  what  the  law  is  there, 
must  be  binding  here  also,  this  right  to  freedom  having  had  its 
origin  in  that  state,  and  the  plaintiff  below  having  had  her  domicil 
residence  there  until  lately.  Counsel  say  she  would  be  declared 
free  there  ;  and,  therefore,  should  be  free  here. 

It  is  apprehended,  that  this  would  be  carrying  the  doctrine  of 
comity  between  the  judicial  tribunals  of  independent  states  and 
empires  farther  than  it  has  ever  yet  been  extended,  under  the  influ 
ence  of  the  rules  of  international  law,  or  the  peculiar  provisions  of 


OF  SUITS  FOR  FREEDOM.  403 

our  federal  constitution.  True  it  is,  that  the  decisions  of  the  Vir 
ginia  courts,  as  to  the  proper  construction  of  their  own  statutes, 
would  be  unquestioned  by  any  tribunal  in  any  other  government. 
Elmendorf  v.  Taylor,  10  Wheat.  Rep,  159.  ;  6  do.,  119. ;  5 
Cranch's  Rep.  234  ;  4  do.,  428.  And  so  it  would  be  as  to  their 
decisions  with  regard  to  real  property  situated  there ;  the  univer 
sal  rule  being,  that  courts  are  to  be  governed,  as  to  that  sort  of 
property,  by  the  lex  loci  rei  sitce.  VattePs  L.  of  N.  and  n.  b.  2. 
ch.  8.  sec.  103.  110. ;  10  Wheat.  Rep.  192.  468. ;  7  Cranch's  Rep. 
115.  It  is  equally  true,  and  very  notorious  too,  that  contracts  are  ge 
nerally  to  be  unders  <  od  and  given  effect  to,  agseeably  to  the  law 
of  the  country  where  made.  But  it  is  conceived,  that  the  ques 
tion  here  is  not  within  the  governance  of  any  one  of  the  foregoing 
principles.  To  say  that  Phebe  was  free  in  Virginia,  is  begging 
the  question.  They  certainly  have  no  statute  which  pronounces 
her  free.  Whether  free  or  not,  whould  depend  upon  the  finding 
of  a  jury  as  to  the  fact  of  freedom.  The  difficulty  is,  as  to  what 
evidence  shall  be  received  to  show  that  she  is  free;  as  to  what  is 
the  true  mode  of  ascertaining  facts  of  a  certain  character.  And 
that  is  to  be  determined  by  the  rules  of  common  law,  modified 
and  applied  to  the  actual  condition  of  men  and  things  in  this 
country.  On  such  a  subject,  courts  in  Virginia  judge  for  them 
selves  ;  and  courts  here  are  bound  to  exercise  and  pronounce 
their  own  judgments.  There  is  another  point  of  view  in  which  to 
place  this  subject.  No  doubt  the  most  of  the  proof  in  controversy 
is  admissible  to  show  pedigree.  Is  not  the  whole  of  it  ?  When 
you  offer  evidence  of  reputation,  as  to  whether  a  person  at  a  re 
mote  period  was  free,  are  you  not  endeavoring  to  show  that  he 
was  descended  from  free  ancestors  ?  Are  you  not  showing  his 
descent  ?  Are  you  not  proving  pedigree  ?  At  all  events,  the 
necessity  for  the  evidence  being  equal,  is  not  the  principle  the 
same,  requiring  its  introduction  in  both  instances.  So  far,  then, 
as  the  depositions  have  allusion  to  pedigree  or  common  reputation 
as  to  freedom,  we  believe  them  to  be  competent  evidence.  But 
they  contain  some  statements  which  are  not  considered  admissi 
ble  ;  and  in  receiving  which,  we  think  the  court  erred.  We  allude 
to  the  evidence  of  several  of  the  family  having  recovered  their  free 
dom  by  due  course  of  law,  &c.  This  ought  to  have  been  rejected. 
It  would  have  been  better  proved  by  the  records  themselves.  And  it 


404  SLAVERY. 

is  a  maxim  of  the  law  of  evidence,  as  true  as  it  is  trite,  that  the  best 
evidence  which  the  nature  of  the  case  admits  shall  be  produced. 

Upon  the  whole,  we  are  all  of  opinion,  that  the  following  judg 
ment  and  directions  be  entered  in  this  cause  :  Reverse  the  judg 
ment  and  remand  it  to  the  circuit  court  for  a  new  trial,  and  reject 
the  following  words  in  Poole's  deposition,  "  and  that  Abner,  the 
brother  of  Phebe,  the  plaintiff  sued,  as  he  is  informed  and  believes, 
said  Thomas  Hardeway,  and  was  killed  by  him."  And  to  reject 
the  following  words  in  Martha  Jones'  deposition:  "Deponent  be 
lieves  all  Phebe's  relations  in  th  jse  parts  have  also  obtained  theirs,  on 
the  plea  of  their  being  descended  from  an  Indian  ancestor.  Has  also 
understood,  that  one  of  the  same  family,  named  Minor,  and  seve 
ral  others,  have  since  got  free,  as  will  appear  of  recorc'."  And  to 
reject  the  following  words  in  Phebe  Tucker's  deposition.  "  Depo 
nent  believes  all  Phebe's  relations  in  those  parts  got  their  freedom 
on  the  plea  of  their  being  descended  from  an  Indian  ancestor ;  al 
ways  understood  that  Molly  Moore  had  one  of  the  family  by  the 
name  of  Minor,  and  several  others,  all  of  whom  have  obtained 
their  freedom  upon  the  same  plea."  And  to  admit  the  residue  of 
said  depositions,  and  also  the  verdict  and  judgment,  with  the  pro 
ceedings  upon  which  they  were  founded,  in  evidence  to  the  jury. 

10. 

JENKINS  v.  TOM.  et  al.  Fall  T.  1792.  1  Wash.  Rep.  123.;  COLE- 
MAN  v.  DICK  AND  PAT,  1  Wash.  Rep.  233. ;  HUDGIXS  v. 
WRIGHTS,  1  Hen.  &  Munf.  Rep.  134.;  PALLAS  et  al  v.  HILL, 
2  Hen  &  Munf.  Rep.  140. 

„,,  Held  by  the  court,  that  when  an  Indian  is  claimed  as  a  slave 

1  he   onus  J 

probandi      the  onus  probandi  is  upon  the  claimant.     So,  also,  where  white 

lies  on  the 

claimant  persons,  or  native  American  Indians,  or  their  descendants  in  the 
Indian  is"  niaternal  line,  are  claimed  as  slaves,  it  lies  on  the  claimants;  but, 
claimed  as  t^e  ru|e  js  reversed  where  native  Africans,  or  their  descendants, 

a  slave. 

are  the  subjects  of  the  claim. 

11. 
WELLS  v.  LANE.    May  T.  1812.    9  Johns.  Rep.  144. 

Parol  de-        Lane  sued  Wells  for  harboring  his  slave  Betty.    Lane,  who  was 

clarations        f       black  man,  proved  that  he  purchased  Betty  and  her  mother 

made  more 

than  twen-  about  24  years  ago,  and  that  he  married  the  mother  when  Betty 

was  about  one  year  old.     Lane  declared  to  a  witness,  that  he  had 


owner  of  a 


OF  SUITS  FOR  FREEDOM.  405 

purchased  his  wife  and  child  from  bondage ;  that  they  were  received  glave  that 

amons:  their  society  (Quakers)  as  free  persons  ;  that  he  had  paid  he  purcha 
sed  her  to 
a  trifling  sum  for  them,  because  he  had  purchased  them  from  make  her 

bondage  into  freedom.     He  knew  that  neither  slaves  nor  slave-  fhat'hed 
holders  could  be  admitted  into  the  society  ;  and  while  the  plaintiff  ™eba"Jreheedr 
and  his  family  were  in  the  society,  they  were  considered  as  child-  were  held' 

tr       v    ^    r  i     •     ±'o?  to     De    eyi" 

ren,  and  not  as  slaves,      verdict  lor  plamtin.  deuce  Of  a 

Per  Cur.  By  the  statute  of  1788  it  is  declared,  that  if  any  per-  ^umis" 
son  shall,  by  last  will,  or  otherwise,  manumit,  &c.  It  would  not  be 
giving  the  provision  of  the  law  its  due  effect  to  consider  no  manu 
mission  valid  unless  it  was  in  writing.  And  if  parol  manumissions 
were  binding  under  the  statute,  the  plaintiff's  declarations  fully 
show  that  he  never  considered  Betty  as  his  slave,  nor  did  he  pur 
chase  her  as  such.  Judgment  reversed. 

12, 
PHILLIS  v.   GENTIN.     March  T.  1836.     9  Louisiana  Rep.  208. 

In  a  suit  for  freedom,  the  plaintiff,  a  black  woman,  alleged,  that  A  statu  H- 
she  was  born  free  in  Pennsylvania,  and  that  she  is  now  held  in  pennsylva- 
slavery  by  the  defendant.     The  defendant  alleged,  that  he  bought  "j^8^ 
the  plaintiff  by  public  or  notarial  act,  &c.     It  appeared  in  evidence,  age    at 
that  the  plaintiff  was  bound  an  indented  servant  in  Philadelphia,  to  is  to  be 
serve  until  she  was  28  years  of  age,  and  that  her  master  sold  her,  [[^be^eid 
and  she  was  taken  to  Pittsburg,  and  afterwards  to  Louisville  ;  and  jn  slavery 
where  she  was  sold  to  others,  and  finally  was  bought  by  the  de-  ana. 
fendant. 

The  court  observed  :  "  There  is  no  evidence  that  she  was  born 
free  ;  but  the  person  in  whose  possession  we  first  find  her,  held 
her  as  a  person  indented  to  service  till  28  years  of  age,  which  has 
elapsed.  She  was  in  like  manner  held  as  an  indented  servant  by 
Bakewell,  Zuma,  and  Sulton,  successively.  She  also  resided  with 
Zuma  in  Ohio,  a  state  where  slavery  never  has  existed.  This  fact, 
according  to  the  principle  to  that  effect  established  in  the  case  of 
Forsyth  et  al.  v.  Nash,  4  Martin's  Rep.,  would  entitle  the  plaintiff  to 
her  liberty.  If  the  plaintiff  was  an  indented  servant  in  the  hands  of 
Page,  Bakewell,  Zuma,  and  Sulton,  it  is  not  seen  how  she  could 
afterwards  become  a  slave.  The  plaintiff  and  her  children  are  en 
titled  to  a  decree  for  their  freedom.  The  defendant  appealed. 

By  the  court,  Mathews,  J.  It  is  ordered,  adjudged,  and  decreed, 
that  the  judgment  of  the  district  court  be  affirmed. 


406  SLAVERY. 

13. 

SCOTT  v.  WILLIAMS.    June  T.  1828.  1  Devereaux's  North  Caro 

lina  Rep.  376. 


In    ties  ^le  plamtin°  declared  in  trespass  for  an  assault  and  battery  and 

tions    of     false   imprisonment  ;    the   object  of  the  suit  being  to   ascertain 
freedom,°a  whether  the  plaintiff,  a  negro  held  in  slavery  by  the  defendant,  was 

SonTf^sla   not  in  trutn  free'     On  tne  tr*al»  ^e  Plaintin°  proved  that  he  was 

very  arises  the  son  of  Jemima,  who  was  the  daughter  of  Jane  Scott  ;  and  the 

black  com-  question  was,  whether  Jane  Scott  was  a  free  woman.     Contra- 

butXl  m>'ne    dictory  statements  of  her  color  were  given  ;  but  the  plaintiff  intro- 

from  that    duced  an  indenture  whereby  Jemima  was  bound  to  the  father  of 

to.*  the  defendant,  as  a  free  girl  of  color.     The  plaintiff  was  given  as 

a  slave   by  the  defendant's  father  to  him,  and  resided  with,  and 

served  the  defendant  from  the  time  of  the  gift  to  that  of  the  trial. 

His  honor,  the  judge  below,  instructed  the  jury,  that  the  first  ques 

tion  for  them  was,  whether  Jane  Scott  was  a  free  woman.     And 

in  ascertaining  that  fact,  her  color  might  enter  into  their  considera 

tion.     If  she  was  of  a  black  African  complexion,  they  might  pre 

sume,  from  that  fact,  that  she  was  a  slave  ;  if  she  was  of  a  yellow 

complexion,  no  presumption  of  slavery  arose  from  her  color.    The 

defendant  appealed. 

Per  Cur.  Hall,  J.  How  far  the  charge  of  the  judge  in  this 
case  will  admit  of  verbal  criticism,  is  not  my  province  to  inquire  ; 
but  that  it  is  plain  and  perspicuous,  so  as  to  be  readily  comprehended 
by  the  jury,  I  think  there  can  be  but  little  doubt.  They  were  told 
that  they  might  consider  whether  Jane  Scott  was  of  a  black  com 
plexion.  If  she  was,  they  might  presume  from  that  fact  that  she 
was  a  slave  ;  if  she  was  of  a  yellow  complexion,  no  presumption 
of  slavery  could  arise  from  her  color.  This  part  of  the  charge 
has  been  found  fault  with  in  argument,  because  the  jury  were  not 
instructed  that  they  must  presume  that  Jane  Scott  was  a  slave,  if 
she  was  of  a  black  complexion.  The  judge,  to  be  sure,  in  more 
harsh  dictatorial  terms  might  have  done  so;  but  I  think  the  differ- 


*  It  is  a  general  rule  in  all  the  states  where  slavery  exists,  that  every  negro  is  to  be 
presumed  a  slave.  In'addition  to  the  cases  abridged,  Gibbons  v.  Morse,  2  Halst  Rep. 
253  ;  Davis  v.  Curry,  2  Bibb's  Rep.  238.  But  this  rule  is  qualified  in  North  Caro 
lina,  and  is  confined  to  the  black  color,  and  does  not  extend  to  the  mixed  blood,  mu- 
lattoes,  mestigoes,  &c.  Gobu  v.  Gobu,  1  Taylor's  Rep.  164.;  2  Hayw.  Rep.  170. 
See  2  Brevard's  Dig.  235.;  Mississippi  Rev.  Code  376.;  Laws  of  Maryland,  act 
of  1715. 


OF  SUITS  FOR  FREEDOM.  407 

ence  would  be  verbal  ratber  tban  substantial.  When  tbey  were 
told  that  no  presumption  could  arise  from  a  yellow  complexion, 
tbey  must  have  understood  the  judge  to  mean,  that  a  presumption 
of  slavery  must  arise  from  a  black  one.  I  think  there  is  nothing 
solid  in  the  objection. 

14. 
MAHOXEY  v.  ASHTOX.  Oct.  T.  1797.  4  Har.  &  M'Hen.  Rep.  63. 

On  a  trial  for  freedom  the  deposition  of  Henry  Davis  was  read,  Report  of 
in  which  he  stated,  that  he  had  heard  his  uncle,  David  Davis,  (who  {J^S?1" 
is  deceased.)  say,  that  it  was  the  report  of  the  neighborhood  that  thatthean- 

}/         JJ  .  .  cestor  of 

if  she,  Joice,  (meaning  the  ancestor  of  the  petitioner,)   had  had  the  peti- 
justice  done  her,  she  ought  to  have  been  free ;  and  this  he  heard 


sundry  times  from  his  uncle  when  talking  the  matter  over.       The  freed°m  is 

proper  tes- 

counsel  for  the  defendant  objected  to  reading  the  evidence  to  the  timony  in 
;urv  favor  ofthe 

petitioner. 

The  court,  Chase,  Ch.  J.,  overruled  the  objection,  and  deter 
mined  it  should  be  given  to  the  jury. 

15. 

PEGRAM  v.  ISABELL.  March  T.  1808.  2  Hen.  &  Munf.  Rep. 
193. ;  S.  C.  1  Hen.  &  Munf.  387. ;  SHELTON  v.  BARBOUR, 
2  Wash.  Rep.  64. ;  LEE,  ex'r  of  DANIEL,  v.  COOKE,  1  Wash. 
Rep.  306. ;  HUDGINS  v.  WRIGHTS,  1  Hen.  &  Munf.  134. 

This  was  an  issue,  whether  the  complainant  was  a  free  person  or  The  ofT- 
a  slave.  The  ground  on  which  the  complainant  claimed  her  freedom  ^^m^vf 

was,  that  she  was  descended  from  an  Indian,  who  had  been  import-  dence  the 

record   of 
ed  in  this  country  under  such  circumstances  as  would  not  justify  the  judg- 

her  detention  in  slavery  ;  and  on  which  ground  her  mother  Nanny  ^ther  Tul? 
had  recovered  her  freedom  of  one  Mayes,  her  master.     The  ver-  in,  [avor 

J      '  ofthe  mo- 

dict  and  judgment  of  the  court  in  favor  of  Na  my,  the  mother  of  therin  a 
the  plaintiff,  was  given  in  evidence.  Verdict  for  the  complainant,  freedom, 
and  the  defendant  appealed  to  this  court. 

The  court,  Tucker,  Roane,  and  Fleming,  J's.,  held,  that  the  record 
of  the  verdict  and  judgment  upon  a  writ  of  inquiry,  in  a  suit  by 
the  mother  of  the  plaintiff  against  a  third  person,  in  which  record 
the  ground  of  the  judgment  does  not  appear,  may  be  given  in  evi 
dence  to  prove  that  the  mother  had  recovered  her  freedom  ;  not  that 
she  was  entitled  to  it  "by  reason  of  being  descended  in  the  mater 
nal  line  from  an  Indian  ancestor  imported  into  this  state  since  the 
year  1705:"  but  the  question  on  what  ground  the  judgment  in  that 


408  SLAVERY. 

suit  was  rendered,  and  whether  the  defendant  was  born  after  the 
mother  acquired  her  right  to  freedom  or  not,  ought  to  be  left  open. 
Per  Tucker,  J.     How  far  a  verdict  inter  alias  is  admissible,   either 
•  as  conclusive,  or  only  as  presumptive  evidence  in  suits  respecting  free 
dom,  I  think  may  be  shown  by  the  following  case  :    a  female   held 
in  slavery  recovers  her  f  .-to  m  by  judgment  in  the  court  of  one 
county  or  district ;  she  removes  to  another  county  or  district,  with 
out  a  certificate  of  her  freedom  ;  is  taken  up  as  a  runaway  ;   ad 
vertised  and  sold  as  such  under  the  act  concerning  runaways.  She 
brings  another  suit  for  her  freedom  against  her  new  master.     Can 
it  be  required  of  her  to  do  more  than  to  produce  the  former  record 
of  her  recovery,  with  an  averment  that  she  is  the  same  person  ? — 
I  conceive  not ;  and  that  such  record  is  conclusive  against  all  the 
world,  unless  the  judgment  can  be  impeached  by  a  person  whose 
title  was  antecedent,  to  the  recovery,  on  the  ground  of  fraud  and 
collusion  between  herself  and  the  defendant  against  whom  she  had 
recovered,  or  whose  title  was  paramount  to  that  of  the  defendant, 
and  who  would  not  have  been  barred  by  the  act  of  limitations,  if  he 
had  brought  an  action  of  detinue  for  her  as  his  slave.     Now,  let  us 
suppose,  that  at  the  time  she  was  apprehended  as  a  runaway,  and 
sold,  she  had  a  child  with  her,  who  should  also  be  sold  as  a  slave, 
would  it  not  be  competent  for  this  child  to  produce  the  record  of 
the  mother's  recovery,  and  aver  that  she  was  born  after  the  com 
mencement  of  the  suit,   or  the  day  of  the  writ  purchased.     And 
if  she  proved  this,  would  not  the  record  be  conclusive  evidence  in  her 
favor  against   all  the  world,  except  as   before  mentioned.     And  if 
it  would  be  conclusive  evidence  in  that  case,    as  I  hold  it  would, 
could  she  not  avail  herself  of  that  record  as  circumstantial  evi 
dence,  to  prove  her  right  to  freedom,  under  a  prior  right  thereto,  in 
her  mother,  if  the  child  should  happen  to  be  born  before,  instead 
of  after  the  writ  purchased  in  that  suit  ?     I  am  decidedly  of  that 
opinion  also.     For  if  the  child  be  let  in  to  prove  the  fact  that  her 
mother  was  a  free  woman  by  hearsay  testimony,  ought  she  not  to 
be  let  in  to  prove  it  by  a  judgment  ?     I    am  of  opinion  that  the  re 
cord  maybe  admitted  as  evidence  ;  that  Nanny,  one  of  the  plain 
tiffs  in  that  suit,  was  a  free  woman,  or  entitled  to  her  freedom  on 
the  day  of  the  emanation  of  the  writ  in  that  suit ;  leaving  it  open 
to  both  parties  to  show  upon  what  ground  that  judgment  was  ren 
dered  ;   and  also,  whether  the  present  plaintiff  was  born  before  or 
after  the  emanation  of  the  writ  in  that  suit. 


OF  SUITS  FOR  FREEDOM.  409 


(C.)   OF  THE  DAMAGES. 
1. 

PHILLIS  v.  GENTIN.     March  T.  1836.     9  Louisiana  Rep.  208. 

Phillis  was  a  statu  libera  in  Pennsylvania,  to  serve  until  she  was 
28  years.     She  was  transferred  to  and  from  various  persons,  until  jy  holding 
the  defendant  brought  her  from  a  person  claiming  her  as  a  slave 
for  life. 

The  28  years  having  expired,  and  the  woman  having  been  ta 
ken  to  Ohio,  where  slavery  is  not  tolerated,  the  court  declared 
her  free.  And  as  to  the  damages,  they  observed,  "  we  think  they 
ought  not  to  be  allowed  against  the  defendant,  or  any  of  the  war 
rantors,  except  the  vendor,  who  first  violated  their  rights  by  sell 
ing  her  as  a  slave  for  life  ;  he  would  be  liable  to  vindictive  dama 
ges  in  a  suit  regularly  brought  for  that  purpose.  The  others,  who 
have  had  her  in  their  possession,  appear  to  have  been  possessors  in 
good  faith." 


PLEASANTS  v.  PLEASANTS.     April  T.  1800.     2  Call's  Rep.  350. 

Held  by  the  court,  that  negroes  and  mulattoes,  recovering  free-  ibid. 
dom,  are  not  entitled  to  damages  for  detention,  or  to  an  account 
of  the  profits  of  their  labor,  while  held  in  slavery. 

S. 
THOMPSON  v.  WILMOT.     Spring  T.  1809.     1  Bibb's  Rep.  422. 

Held  by  the  court,  Bibb,  Ch.  J.,  that  where  the  defendant  has 
reasonable  ground  to  believe  the  person  in  servitude  is  his  slave, 

only   nominal  damages  would  be  given  for  the  detention  ;   but  had  rea- 

where  the  party  held  a  negro  in  servitude  after  the  period  at  which  ground  to 

he  himself  contracted  to  emancipate  him,  actual  damages  were  k^tiVuJ 

decreed.  be  hia 

slave. 

4. 

MATILDA  v.  CRENSHAW.     March  T.  1833.     4  Yerger's  Tenn. 

Rep.  299. 

This  was  an  action  of  trespass,  brought  by  the  plaintiff,  Matilda, 
against  the  defendant.   The  following  facts  were  agreed  on  :  That  helcUn  °fa- 
on  the  15th  of  June,  1825,  and  long  before,  the  defendant  held  the  ™?>  *£ 
plaintiff  to  labor  as  his  slave  ;   on  that  day  she  sued  out  her  writ  in  recovered 
52 


410  SLAVERY. 

her  free-  trespass  against  the  defendant,  returnable  to  the  succeeding  term ; 
maintain^  at  which  term  she  declared  against  the  defendant  for  an  assault  and 
abaction  battery  and  false  imprisonment ;  to  which  the  defendant  pleaded, 
pass  for  her  that  she  was  his  slave.  Upon  the  trial  of  the  issue,  the  jury  found 

labor  and  ,.  J      J 

services,  a  verdict  in  favor  of  the  plaintiff,  and  on  the  —  day  of  Apiil,  1827, 
™rohSd  final  judgment  was  rendered  in  her  favor.  From  the  said  15th 
in  slavery.  June,  1825,  Until  said  —  day  of  April,  1827,  the  day  on  which  the 
judgment  was  rendered,  the  defendant  continued  to  hold  the  plain 
tiff  to  labor  as  his  slave.  One  of  the  questions  in  this  case  was, 
whether  the  plaintiff  could  maintain  this  action  to  recover  damages 
for  detention  during'  the  pendency  of  the  original  suit,  and  prior  to 
its  determination.  It  was  agreed,  that  if,  upon  the  facts,  the  court 
should  be  of  opinion  that  the  plaintiff  should  be  entitled  to  recover, 
judgment  should  be  entered  for  her  for  the  sum  of  $20  per  annum, 
for  so  long  a  time  as  the  court  should  be  of  opinion  the  defendant 
was  liable. 

Per  Cur.  Catron,  Ch.  J.  Can  a  person  holden  in  slavery,  but 
who  by  a  suit  has  established  her  right  to  freedom,  bring  a  second 
suit  to  recover  for  profits  produced  by  her  labor  to  him  who  held 
her  as  a  slave  ?  Is  the  first  suit,  in  which  nominal  damages  were 
recovered,  an  estoppel  to  a  second  recovery  1  Both  the  actions 
are  in  trespass  vi  et  armis.  But  the  first  for  freedom  tries  the  title, 
as  an  ejectment  in  cases  of  land  ;  slave  or  no  slave,  is  the  issue, 
which  has  never  been  holden  in  this  state  to  involve  the  question 
of  hire.  We  borrowed  the  form  of  action  from  our  sister  states, 
especially  Virginia,  where  the  same  rule  of  practice  prevails. 
Pleasants  v.  Pleasants,  2  Call's  Rep.  277.  293.  299.  That  the 
slave  cannot  sue  the  master,  is  a  general  rule.  A  suit  for  freedom 
tries  the  fact,  whether  the  plaintiff  is  a  slave.  This,  established  by 
a  verdict  and  judgment,  concludes  the  defendant  to  the  suit  for 
freedom  from  controverting  the  right,  as  in  cases  of  ejectment, 
where  trespass  quare  clausum  fregit  is  brought  to  recover  mesne. 
Bull.  N.  P.,  87.  But  the  judgment  in  the  freedom  suit  will  only 
relate  to  its  commencement,  and  estop  the  defendant  to  that  time  ; 
if  wages  and  damages  for  previous  time,  and  because  of  previous 
abuse  are  claimed,  the  controversy  will  again  result  in  one  of  title. 
This  is  in  analogy  to  the  rent  for  mesne  profits  of  land,  in  which 
case  the  recovery  in  ejectment  is  conclusive  evidence  of  title  from 
and  after  the  commencement  of  the  action  ;  before  the  right  has 
not  been  adjudged  Bull.  N.  P.  87.;  Adam's  333,  4,  5.  The 
defendant,  Crenshaw,  being  estopped  to  controvert  the  freedom  of 
Matilda,  or  to  say  he  rightfully  held  her  to  service  from  and  after 


OF  SUITS  FOR  FREEDOM.  411 

the  commencement  of  the  suit  for  title,  and  her  capacity  to  sue  ha 
ving  been  established  ;  the  next  question  is,  how  much  can  she  re 
cover?  From  the  15th  of  June,  1825,  to  the  —  day  of  April, 
1827,  she  is  entitled  to  recover  at  the  rate  of  $20  per  annum. 

5. 

MATILDA  v.  CRENSHAW.    March  T.  1833.     4  Yerger's  Tenn. 

Rep.  299. 

Trespass. 

Matilda,  the  plaintiff,  having,  in  a  former  suit  against  the   de-  Money 
fend  ant,  established  her  right  to  freedom,  brought  this  action  to  wh!ch.the 
recover  wages  during  the  pendency  of  the  original  suit,  and  up  to  IU  nece* 
final  judgment  ;  the  defendant  having  continued  to  hold  her  as  his  p^nded^n 

slave.  establish- 

Per  Cur.      Catron,  Ch.  J.     Matilda  spent  fifty  dollars  in  prose-  claim  ' 


cuting  her  suit  for  freedom.     It  is  admitted  the  expense  was  ne- 
cessary.     Can  this  be  recovered  in  the  present  action  ?     Nothing  &«TS 
is  better  settled  than  that  things  may  be  laid  in  aggravation  of  coverable 
damages,  and  that  the  whole  damage  sustained  by  the  tort,  may  be 
recovered  in  actions  of  trespass  m  et  armis,  or  trespass  quare  clau- 
sum  fregit.      Bull.  N.   P.,   21.   89.;  Adam's  332,  3.       The  fifty 
dollars  will  be  added  to  the  wages. 


(D.)    Op  THE  JUDGMENT. 

1. 

ALEXANDER  v.  STOKELY.  Sept.  T.  1821.  7  Serg.  &  Rawle's 
Rep.  299.  S.  P.  SHELTON  v.  BARBOUR,  2  Wash.  Rep.  64.; 
PEGRAM  v.  ISABELL,  2  Hen.  &  Muiif.  193. 

Homine  replegiando,  brought  by  Susannah  Stokely  against  Alex-  A  -ud  _ 
ander,  to  try  the  right  of  the  plaintiff  to  the  services  of  a  negro  ment  of 
girl  called  Nance.  The  record  of  a  judgment  of  the  court,  in  a  in  favor  of 


case  where.  Milley,  the  mother  of  Nance,  was  complainant,  and 

Mrs.  Stokely  defendant,  and  where  the  court  found  Milley  a  free  *ive  evi' 

•  dence  a- 

person,  and  not  a  slave,  was  offered  in  evidence.     The  evidence  gainst   the 
was  objected  to,  and  rejected  by  the  court. 

Per  Cur.     Nance  was  born  after  her  mother  became   a  free 


woman  ;  and  the  question  is,  whether  Susannah  Stokely  is  estop-  of  the 

,,,..,  .  .  mother 

pea  by  this  judgment  from  now  averring  contrary  to  the  title  thus  bom   after 
found  that  Milley  was  her  slave.     I  do  not  propose  the  question, 


412  SLAVERY. 

whether  it  is  evidence  to  go  to  the  jury,  on  the  issue  on  trial,  but 
on  the  ground  of  its  collusiveness.  A  recovery  in  any  suit  upon 
issue  joined,  on  matter  of  title,  is  conclusive  on  the  subject  matter  of 
title.  An  allegation  on  record,  upon  which  issue  has  been  once 
taken  and  found,  is,  between  the  parties  taking  it  and  their  privies, 
conclusive  according  to  the  finding  thereof,  so  as  to  estop  the  par 
ties,  respectively,  from  again  litigating  that  fact  once  so  tried  and 
found.  Now,  nothing  can  be  clearer  than  this,  that  the  children 
are  privies  in  bl  ood  to  their  mother ;  and  so  far  as  it  regards 
the  state  of  the  mother,  whether  a  slave  or  free  at  the  time  of  their 
birth,  are  privies  in  estate.  It  is  unnecessary  to  decide,  whether 
children  would  be  bound  by  judgment  against  their  mother  on  a 
question  of  their  freedom  ;  yet,  even  to  support  that  doctrine,  there 
is  very  high  authority. 

In  the  case  of  a  child  claiming  to  be  free,  because  the  mother  in 
a  suit  wherein  the  same  person  was  a  party  claiming  the  services 
of  both,  was  adjudged  free,  on  an  atlegation  appearing  on  the 
record  precisely  found  that  the  mother  was  free  when  the  child 
was  born,  I  can  entertain  no  doubt  but  on  principles  of  reason  and 
authority,  the  judgment  is  conclusive  as  to  the  freedom  of  the  child- 
The  first  step  the  defendant  must  take,  would  be  to  prove,  that  the 
mother  was  a  slave  ;  partus  sequitur  ventrem.  The  child  is  born 
free  according  to  the  condition  of  the  mother  ;  and  if  an  action 
wherein  the  person  claiming  the  services  of  the  child  is  one  party, 
and  the  mother  is  the  other  party,  she  has  been  declared  free  by  the 
judgment  of  a  court  of  competent  jurisdiction,  that  matter  cannot 
again  be  called  in  question.  The  child  with  the  record  in  his 
hand  cannot  be  held  in  slavery  or  servitude.  There  is  an  end  to  the 
question  as  to  the  mother.  The  condition  of  the  mother  is  changed, 
and  it  would  shake  our  understandings,  if  the  law  were  so  that  a 
child  whose  mother  by  law  had  been  free  before  her  birth  should, 
notwithstanding,  be  born  a  servant  or  slave.  In  all  personal  actions 
concerning  goods,  chattels,  and  debts,  a  recovery  in  one  action  is 
a  bar  in  another,  and  there  is  an  end  of  the  controversy.  Coke's 
Preface  to  his  Eighth  Reports.  The  judgment,  which  is  the  fruit 
of  the  action  concludes  the  existence  of  the  right.  If  this  child  had 
been  born  after  the  judgment  in  favor  of  the  mother,  it  could  not  be 
pretended  that  the  plaintiff  below  could  retain  her  as  a  servant; 
yet  this  judgment  has  relation  to  the  condition  of  the  mother  when 
the  child  was  born,  which  has  been  conclusively  settled  to  be  that 
of  a  free  woman. 


OF  SUITS  FOR  FREEDOM.  413 

The  judgment  is  final  for  its  own  proper  use  and  object  ;  and 
is  conclusive  on  its  subject,  by  way  of  bar  to  future  litigation,  for 
the  thing  thereby  decided.  The  judgment  was  on  the  very  right 
to  hold  the  mother  in  slavery.  That  judgment  was,  that  she 
ceased  to  be  a  slave  long  before  the  birth  of  this  child.  That  was 
the  immediate  right  in  demand  :  the  whole  right  of  the  plaintiff  in 
this  action  hung  on  that  inquiry.  She  claimed  by  and  through  the 
mother. 

Freedom  or  slavery  of  the  mother  was  the  substantial  matter  in 
issue  in  both  suits.  A  case  in  the  Year  Book,  13th  Ed.  IV.  2,  3,  4, 
comes  up  to  this.  It  was  trespass  for  taking  a  villein.  The  ancestor 
of  the  villein  had  answered  in  a  former  suit,  in  which  it  had  been 
alleged,  that  he  was  a  villein  regardant  ;  that  he  was  free,  and  not 
a  villein  in  manner  and  form  as  alleged  ;  and  it  was  so  found.  The 
son  of  the  supposed  villein  relied  on  this  finding  as  an  estoppel  ; 
and  it  was  held  so. 

The  court  erred  in  not  admitting  this  evidence.  It  was  not  only 
relevant,  but  conclusive.  Strictly  speaking,  as  the  former  judg 
ment  was  not  pleaded,  it  may  not  be  considered  a  legal  estoppel  ; 
yet  it  was  conclusive,  in  evidence  oil  the  right  of  these  parties. 

2 

VAUGHAN  v.  PHEBE,  a  woman  of  color.     Jan.  T.  1827.     Mar 
tin   &  Yerger's  Tennessee  Rep.  1. 

Phebe  sued  Vaughan  in  the  court  below  in  an  action  of  trespass  Ajudg- 
and  false  imprisonment.  Vaughan  pleaded,  that  Phebe  was  a  slave,  JJJr^of1  ?' 
and  his  property.     To  which  plea  Phebe  replied,  denying  she  was  freedom  of 
a  slave,  and  the  property  of  Vaughan.     Upon  which  replication 
issue  was  joined.     At  the  trial  in  the  court  below,  the  plaintiff  of- 


fered  to  read  to  the  jury  the  record  of  a  verdict  and  judgment  of  herdes- 

,.  T»  .  /T7.  cent    from 

the  superior  court  of  Prince   George  county,    (Virginia,)   in  the  Indian  an- 

suitof  Tab  et.  el.  v.  Littlebury  Tucker,  whirh  record  established  the  maybe  re- 
fact,  that  Tab  had  in  that  suit  recovered  her  freedom,  on  account  cei.^ed  in 
of  her  descent  from  Indian  ancestry.      Tab  proved  to  be  the  maternal  inasuitfor 
aunt  of  the  plaintiff.     The  defendant   objected  to  the  admission  of 
this  record  as  evidence  ;  but  the  court  overruled  his  objection,  and 


the  record  was  read  to  the  jury.     To  which  opinion  of  the  court  reputation 

,1      j    c      j  °f  tne    ex« 

the  defendant  excepted.  istence    of 

Per  Cur.  Crabb,  J.    Did  the  court  err  by  receiving  the  verdict 
and  judgment  in  the  suit  of  Tab  and  others  v.  Tucker?   That  was 


414  SLAVERY. 

a  suit  by  Tab  for  her  freedom.  She  obtained  a  judgment  in  her 
favor  on  the  ground  that  she  was  descended  from  Indian  ancestors, 
as  appears  from  the  record.  Tab  was  the  maternal  sister  of  Beck, 
who  was  the  mother  of  Phebe.  We  think  that  hearsay  evidence, 
that  the  maternal  sister  of  one  of  Phebe's  ancestors  was  always 
reputed  to  have  been  descended  from  Indian  ancestors,  or  that  she 
was  reputed  to  be  free,  as  having  been  descended  from  Indian  an 
cestors,  would  be  some  evidence,  in  a  case  of  pedigree,  to  show 
that  Phebe  also  was  descended  from  the  same.  And,  therefore, 
we  consider  the  solemn  verdict  of  a  jury,  upon  proofs  produced  to 
them  many  years  ago,  and  with  the  judgment  of  the  court  upon 
it,  full  as  good  evidence,  to  say  the  least  of  it,  of  what  was  con 
sidered  the  truth  in  those  days. 

We  do  not  consider  the  question  as  to  the  introduction,  for  any 
purpose  of  verdicts  between  others  than  parties  and  privies,  as  in 
volved  in  the  determination  of  this  case  in  any  manner  whatever. 
Nor  is  any  opinion  given  as  to  the  admissibility  of  judgments,  ex 
cept  in  the  single  case  of  a  verdict  and  judgment  offered,  as  hear 
say  evidence  in  a  case  of  pedigree,  as  in  the  case  before  us.  Such 
a  verdict  and  judgment  was  held  to  be  admissible  by  the  court  of 
appeals  in  Virginia,  in  Pegram  v.  Isabel,  2  Hen.  &  Munf.  193.  ; 
and  we  believe  properly. 

3. 

SYLVIA  and  PHILLIS,  by  next  friend,  v.  COVEY.   March  T.  1833. 
4  Yerger's  Tennessee  Rep.  297. 

A.  and  B.,  This  was  a  bill  filed  by  the  plaintiffs,  who  are  people  of  color, 

coioSr°,nfile°d  alleSmo  tnev  have  instituted  a  suit  for  freedom,  and  that  they  are  ap- 

their  bill,  prehensive  that  the  defendant  will  convey  them  away  and  sell  them  ; 

that  they  and  they  pray  that  he  be  restrained,  and  that  they  be  taken  out  of 

ted  suils111  ms  hands,  &c.     An  attachment  was  awarded,  by  virtue  of  which 

for  free-  tjje  plaintiffs  were  taken  out  of  the  custody  of  the  defendant.    To 

dom  ;    that 

they  were  this  bill  the  defendant  demurred,  relying  for  cause  principally  upon 
the  ground  that  the  act  of  1817,  ch.  103.,  had  provided  the  plain- 
^  a  reme(ty-  The  circuit  court  sustained  the  demurrer,  dismissed 


ry  them      tne  kju?  an(j  taxed  Myrick,  the  next  friend,  with  all  the  costs. 
state,  and        Per  Cur.  Green,  J.   The  court  erred  in  allowing  the  defendant's 
"and  lhpr™y-  demurrer.      The  act  of  1817,  authorizing  the^court  in  which  the 
r  ^reec^om  mav  ^e  pending,  or  a  judge,  or  a  justice  in  vaca- 


ed;  and      tion,  to  make  an  order  requiring  a  defendant  to  give  security,  or, 
attachment  on  failure,  requiring  the  sheriff  to  take  and  keep  the  plaintiff  in  his 


OF  THE  ACTION  TO  RECOVER  SLAVES.  415 

custody,  does  not  take  away  the  jurisdiction  of  a  court  of  chan-  to  have 
eery  in  such  a  case.  See  1  Ten.  Rep.  478.  ;  2  Bro.  C.  C.  218.  ; 
2  Wash.  Rep.  121.  The  powers  of  a  court  of  chancery  are  more  of  his 
ample  than  those  of  a  court  of  law,  even  under  this  statute  ;  and  Held8/ 
it  might  often  be  advisable  to  file  a  bill,  rather  than  resort  to  the 
remedy  provided  by  the  act  of  181 1.  The  party  may,  at  his  elec-  the'  bill 
tion,  resort  to  either  mode  of  proceeding.  Judgment  reversed.  SJnedT 

notwith 
standing 
the    act  of 
1817,    ch. 
— 103. 


(XXI.)  OF  THE  ACTION  TO  RECOVER  SLAVES. 

1. 

BASS  v.  BASS.    Feb.  T.  1810.     4  Hen.  &  Munf.  478.          may 
An  action  of  detinue  may  be  maintained  for  an  infant  negro 
child  of  such  a  master  without  any  other  description.  naming  the 

negro. 

2. 
CALDWELL  v.  FENWICK.     Fall  T.  1834.     2  Dana's  Rep.  332. 

Fenwick  sued  Caldwell  in  detinue  for  two  slaves  ;  one  of  them,  Bm  win 
it  appeared,  was  dead  before  the  commencement  of  the  suit.    And  not     lie 
the  question  was,  whether  the  action  could  be  maintained  for  or  who  died 
on  account  of  the  slave  that  was  dead.  before  the 

action  was 

Per  Cur.  Nicholas,  J.  It  seems  to  us  that  it  cannot.  The  frame  brought, 
of  the  action  and  principles  of  pleading  forbid  it.  Detinue  is  a  mode 
of  action  given  for  the  recovery  of  a  specific  thing,  and  damages  for 
its  detention.  Though  judgment  is  rendered  for  the  plaintiff  for  the 
alternate  value,  provided  the  thing  cannot  be  had,  yet  the  recovery 
of  the  thing  itself  is  the  main  object,  and  inducement  to  the  allow 
ance  of  the  action.  The  thing  sued  for  has  to  be  specifically  de 
scribed  in  the  writ,  declaration,  judgment,  and  execution,  that  it 
may  be  distinguished  from  other  things  of  the  same  species.  The 
action  is  not  adapted  to  the  recovery  alone  of  the  value  of  the 
thing  detained ;  nor  can  it  be  maintained  therefor.  The  alternate 
judgment  for  the  value  is  but  a  mere  incident  to  the  judgment  for 
the  thing ;  nor  can  it  be  rightfully  rendered,  except  where  there  is 
a  judgment  for  the  thing,  from  which  it  can  result  as  an  incident 
or  consequence.  It  would  seem  therefore,  to  be  an  indispensable 
consequence,  that  there  should  be  a  thing  sued  for.  A  demand 
for  a  dead  slave  does  not  fulfil  the  requirement. 


416  SLAVERY. 

3. 

SAUNDERS  v.  WOODS.     March  T.  1833.     5  Yerger's  Tennessee 

Rep.  142. 

The  complainant  in  this  case  alleges  in  his  bill,  that  the  slave  le- 
complain-  vied  upon  by  the  defendant,  as  the  property  of  his  son,  belongs  to 
not  make  him,  and  did  belong  to  him  at  the  time  of  the  levy,  and  prays  for  a 
out  a  clear  perpetual  injunction.  The  defendant  insists  that  the  slave  is  the 

title  to  a  J  . 

slave  levi-  property  of  complainant  s  son$  and  was  given  to  him  by  complam- 
ant,  and  denies  that  complainant  had  any  right  to  him  when  levied 
on*  ^e  Pro°f  'ls  conflicting  ;  several  witnesses  swearing  that  the 
miss  his  negro  was  only  loaned  by  complainant  to  his  son  to  crop  with  ; 
send  him  several  others  state  facts  and  circumstances  tending  to  show  that 
"roaecute0  li  was  a  £*ft'  Tne  c^ancellor  below  dismissed  the  bill  without  pre- 
his  claim,  judice  to  the  rights  of  the  complainant  at  law.  From  this  decision, 
complainant  appealed  to  this  court. 

Per  Cur.  Catron,  Ch.  J.  The  reasons  why  a  court  of  equity 
does  interfere  to  restrain  an  officer  from  selling  the  slave  of  one 
for  the  debt  of  another,  are  stated  in  the  case  of  Loftin  v.  Espey 
and  Thomas,  4  Yerger's  Rep.  84. ;  and  will  not  be  repeated.  But 
to  authorize  the  complainant  to  ask  the  interposition  of  the  injunc 
tion  powers  of  the  court  to  restrain  the  sale,  he  must  show  clear, 
not  to  say  undoubted  title  in  himself.  If  the  title  is  to  be  ascertained 
by  the  complicated  swearing  of  witnesses,  as  in  this  case,  and  these 
relations  of  the  respective  parties,  the  court  of  chancery  ought  to 
send  the  issue  of  title  to  a  jury,  where  the  witnesses  may  be  seen 
and  heard  in  person.  Now,  this  might  be  attained  by  sending 
down  an  issue  to  be  tried  out  of  chancery,  holding  up  the  cause  in 
the  mean  time  ;  but  there  is  an  overruling  objection  to  such  course  ; 
it  would  supercede  the  action  of  detinue  to  a  great  extent  in  all 
cases  of  the  kind,  and  fill  the  courts  of  equity  with  the  most  ha 
rassing  litigation  by  way  of  experiment  in  advance  of  sending  down 
the  issue.  Every  case  would  depend  on  its  own  circumstances, 
whether  fit  to  be  sent  down  ;  and  it  is  to  be  feared  would  presently 
result  in  a  general  rule,  with  only  occasional  exceptions,  to  send 
down  all  cases,  in  subversion  of  a  tolerably  well-settled  practice, 
to  bring  detinue  for  the  slave  ;  and  if  there  was  apprehension  he 
might  not  be  had,  file  a  bill  to  retain  him  during  the  progress  of 
the  suit  at  law  ;  a  practice  sanctioned  in  a  case  of  trespass  and 
false  imprisonment  for  freedom  at  this  term,  in  Covey  v.  Myrick . 
Where  the  right  is,  therefore,  not  clearly  proved  for  complainant, 


OF  THE  ACTION  TO  RECOVER  SLAVES.          417 

the  bill  must  be  dismissed  ;  which  we  think  was  correctly  done  in 
this  cause,  although  the  complainant  shows  by  his  witnesses  a 
strong  case,  and  that  it  is  highly  probable  he  never  did  give  the 
slave  to  his  son.  This  proof,  however,  is  much  weakened  by  the 
evidence  on  the  part  of  the  defendant,  making  a  fit  case  for  a  jury, 
and  an  unfit  one,  of  course,  to  be  tried  by  a  chancellor.  The  de 
cree  will  be  affirmed,  and  the  complainant  left  free  to  proceed  at 
law.  Decree  affirmed. 

4. 
BAKER  v.  BEASLY.     March  T.  1833.     4  Yerger's  Rep.   570. 

This  was  an  action  of  detinue.     The  plaintiff  declared  for  two  in  detinue 
slaves.     The  jury  found  for  him,  and  assessed  six  hundred  dollars 


as  the  joint  value  of  the  two  slaves,  without  severing  the  value  as  j«iy  should 

,  find  a  sepa- 

to  each.  rate    vafoe 


Per  Cur.  Catron,  Ch.  J.  Two  slaves  were  sued  for.  Their  value 
is  jointly  assessed  at  six  hundred   dollars.       This  is   erroneous.  be  error- 

1  Chit.  Plead.  122.  ;   1  Yerg.  Rep.  170.  ;   10  Coke's  Rep.  119.  ; 
3  Vin.  Sup.  192.  ;  2  Starkie's  Ev.  495.  ;  Higginbotham  v.  Rucker, 

2  Call's  Rep.  313.  Some  of  the  slaves  sued  for  might  be  delivered, 
and  others  it  might  be  impossible  to  deliver,  because  of  death,  pend 
ing  the  suit.     In  the  nature  of  things  the  value  of  each  slave  must 
be  assessed.     Judgment  reversed. 

5. 

CORNWALL  v.  TRUSS.     March  T.  1811.     2  Munf.   Rep.   194.  ; 
HIGGINBOTHAM  v.  RUCKER,  2  Call's  Rep.  313. 

In  an  action  of  detinue  for  slaves  the  jury  assessed  a  gross  sum,  jn  an  ac_ 
and  judgment  was  entered  on  the  verdict.  tion  to  re~ 

J  cover 

The  court  reversed  the  judgment,  and  remanded  the  cause,  with  slaves,  the 

instructions  to  ascertain  the  separate  prices  of  the  slaves.  "assess  sepa 

rate  dama 
ges. 

6. 
CHINN  AND  WIFE  v.  RESPASS.     Fall    T.    1824.       1 

Rep.  25. 


Held  by  the  court,  Beyle,  Ch.  J.,  that  one  joint  tenant,  or  ten- 
ant  in  common,  cannot  maintain  an  action  against  his  co-tenant  to 
recover  possession  of  a  slave.  tion  against 

his   co-te- 
jiant  to  re- 

53  cover 

.slaves. 


418  SLAVERY. 

7. 

AUSTIN'S  EXECUTOR  v.  JONES.  June  T.  1821.  Gilmer's  Vir 
ginia  Rep.  341.  ;  CALDWELL  v.  FENWICK,  2  Danas'  Rep. 
333.;  CARROL  v,  EARLY,  4  Bibb's  Rep.  270. 

In  detinue  Austin's  executor  brought  detinue  against  Jones,  for  several 
the  jury  negro  slaves  by  name,  and  of  specified  value  ;  among  them  was 
found* for  one  called  Beck.  The  defendant  pleaded  non  detinet.  There  was 
tiff  the1""  a  verdict  for  the  plaintiff;  but  the  jury  found  also,  that  Beck,  who 
slave  men-  was  included  in  the  first  part  of  the  verdict,  died  after  suit  brought, 

tioned,&c.  . 

but  that  she  and  no  damages  were  given.  The  court  gave  judgment  lor  all  the 
since  the  slaves  but  Beck  ;  of  her,  no  mention  was  made  in  the  judgment. 

The  plaintiff  appealed. 

the  court  Coalter,  J.  The  appellant  brought  an  action  of  detinue,  in  the 
vertheless  superior  court  of  law  for  Hanover  county,  against  the  appellee, 
ment  ^fbf"  ^or  a  neoro  woman  slave,  named  Beck,  of  the  value  of  $400,  and 
the  slave,  for  her  two  sons,  Paul,  of  the  value  of  400,  and  John,  of  the  value 
value  ;  the  of  $SOO.  The  jury  found  for  the  plaintiff  the  negro  Beck,  of  the 
befng  put  value  of  $475,  Paul,  of  the  value  of  $375,  and  John,  of  the  value 
in  issue  of  $300.  They  then  proceed  in  these  words  :  "  We  further  find 

by     plea 

puisdarrein  the  said  woman,  Beck,  has  departed  this  life,  since  the  institution 
of  this  suit,  to  wit,  during  the  present  year."  They  do  not  find 
any  damages  for  the  detention  of  either  of  the  slaves.  The  court 
gave  a  judgment,  in  the  usual  form,  for  the  negroes,  Paul  and 
John  ;  at  the  bottom  of  which  judgment  is  this  entry  :  "  No  judg 
ment  being  given  for  the  negro  woman  named  Beck  in  the  decla 
ration  mentioned,  or  her  value,  the  jury  having  found  in  their  said 
verdict  that  she  has  departed  this  life  since  the  institution  of  this 
suit,  to  wit,  during  the  present  year."  To  this  judgment  a  super- 
sedeas  was  awarded. 

I,  at  first,  was  inclined  to  be  of  opinion,  that  the  jury  had  a  right 
to  find  the  slave  Beck  for  the  plaintiff,  and  to  fix  a  nominal  value, 
at  least ;  and  although  they  had  fixed  a  real  value  in  their  verdict, 
yet  there  being  no  motion  for  a  new  trial,  on  the  ground  that  the 
value  was  too  high,  this  court  might  presume  it  was  well  ascertained, 
because  the  defendant  may  have  sold  her  for  $475.  Although 
dead,  she  might  be  considered  as  between  these  parties,  to  be  of 
that  value,  and  consequently,  that  the  court  could  give  judgment 
for  her,  so  that  the  plaintiff  might  recover  her  value  so  ascertained. 
Had  I  been  .confirmed  in  this  opinion,  then  I  should  have  been 
for  reversing  the  judgment ;  and  would  either  have  concurred  in 
entering  a  judgment  for  Beck,  of  the  value  fixed  by  the  jury,  or  I 


OF  THE  ACTION  TO  RECOVER  SLAVES.  419 

would  have  sent  the  cause  back,  with  liberty  to  the  appellee  to 
move  the  court  for  a  new  trial  ;  in  order  that  it  might  be  seen 
whether  there  was  any  such  reason,  as  above  supposed,  for  valu 
ing  a  dead  slave  at  $475.  If  1  could  have  so  sent  it  back,  justice, 
I  think,  would  have  required  me  to  do  so  ;  not  only  because  this 
is  a  new  case,  unsettled  by  any  of  the  courts,  but  because  the  jury, 
in  the  first  part  of  the  verdict,  having  found  this  slave  for  the  plain 
tiff  as  though  she  was  alive,  may  have  thought  it  was  their  duty  to 
value  her,  as  if  alive  ;  and  I  think  it  but  right  to  presume,  that  no 
such  reason,  as  above  supposed,  for  assessing  the  value  even 
higher  than  that  laid  in  the  declaration  existed,  because  the  court 
refuse  to  give  judgment  for  that  value,  or  to  say  any  thing  in  rela 
tion  to  it  which  could  induce  such  a  supposition. 

I  had  at  first  doubted,  whether  it  was  not  an  error  for  the  jury  to 
find  a  greater  value  than  that  laid  in  the  declaration  ;  but  I  find  it 
otherwise  settled  in  Rigger's  adm'r  v.  Alderson,  1  Hen.  &  Munf. 
54.  ;  in  which  case  the  court  also  expressly  says,  the  value  is  to  be 
fixed  at  the  time  of  the  verdict.  Why  ?  Because  the  value  may  have 
increased,  even  beyond  the  plaintiff's  own  estimate  when  he  sued  ; 
in  fact,  the  court  there  say,  it  is  not  important  that  the  value  should 
be  laid  in  the  declaration,  (I  presume  this  is  intended  after  verdict,) 
because  the  jury  are  to  fix  the  real  value  at  the  time  of  the  verdict. 
But  if  they  are  to  give  the  plaintiff  the  increased  value  at  that  time, 
they  cannot  take  an  anterior  date,  so  as  to  fix  a  greater  value  on 
the  defendant,  when  he  cannot  go  back  to  an  anterior  date  so  as 
to  establish  a  less  value.  On  further  reflection  and  consideration, 
however,  I  have  come  to  the  conclusion,  that  in  the  case  of  the 
death  or  destruction  of  the  property,  there  can  be  no  verdict  or 
judgment  for  the  specific  thing  ;  but  that  the  regular  course  would 
be  for  the  jury,  in  responding  to  the  whole  issue,  to  find  property 
in  the  plaintiff,  and  damages,  if  any,  for  the  detention,  and  the 
death  or  destruction  of  the  property  since  the  suit,  in  order  to 
show  why  the  value  was  not  assessed  ;  and  the  judgment  will  be 
for  those  damages  only,  and  the  costs.  If  great  profits  had  been 
received,  either  by  a  sale,  great  hires,  or  otherwise,  by  the  defend 
ant,  I  incline  to  think  the  jury  might  give  damages  for  the  deten 
tion,  according  to  what  the  defendant  had  actually  received  ;  but 
as  to  the  value,  the  time  of  ascertaining  it  is  correctly  laid  down 
in  the  case  in  this  court  above  referred  to ;  and  nothing  could  jus 
tify  finding  any  value  as  to  property  dead  or  destroyed  by  act 
of  God.  Even  in  case  of  destruction  by  act  of  the  party,  the 


420  SLAVERY. 

jury  can  only  give  redress  by  way  of  damages  for  detention,  or  pri 
vation  of  property  ;  for  they  cannot  say  that  property  dead  or  de 
stroyed  is  of  any  value.  Suppose  the  slave  had  died  five  years  be 
fore  the  verdict  found,  the  suit  having  been  pending  a  long  time, 
and  the  jury  were  asked  to  assess  hires,  or  damages,  for  the  deten 
tion  to  the  date  of  the  verdict  ;  could  not  the  defendant  show  that 
no  such  hires  had  been  received,  for  that  the  negro  was  dead  ? — 
But  say  she  was  not  dead,  but  that  five  years  before  the  verdict  she 
had,  by  the  visitation  of  God,  become,  and  had  remained  so  or 
since  a  confirmed  maniac,  and  a  perpetual  expense  ;  would  full 
hires  according  to  her  anterior  value  be  given,  down  to  the  date  of 
the  verdict  ?  Could  he  not  show  this  also  as  to  her  value  ?  or  must 
the  jury  find  her  value  as  before  that  visitation  ?  We  are  not  at 
liberty,  nor  are  the  jury,  to  speculate  on  the  chances  that  she  would 
not  have  died,  or  been  thus  visited,  had  she  not  been  detained  from 
the  plaintiff;  or  that  he  might  have  sold  her,  and  laid  his  money 
out  in  other  slaves,  or  lottery  tickets,  and  thereby  gained  great  pro 
fits.  The  whole  injury  which  the  law  supposes  the  party  to  have 
sustained,  down  to  the  verdict,  is  the  reasonable  profits  to  that 
time  :  he  is  to  be  retributed  thus  far,  by  way  of  damages  for  de 
tention,  and  to  recover  back  the  property,  or  its  value,  at  that  time  ; 
if  the  slave  has  grown  up,  and  become  very  valuable  at  that  time, 
then  farther  to  detain,  is  doing  an  injury  to  that  amount ;  and  if  the 
property  is  not  delivered  up,  the  party  is  retributed  for  that  value, 
or  injury,  by  the  judgment 

If  she  has  become  old  and  infirm,  her  hires  have  been  diminishing 
from  year  to  year,  and  her  value  now  is  $10,  though  it  was  an 
hundred  when  the  suit  was  brought.  Their  hires  down  to  the  ver 
dict  retribute  the  party  for  the  injury  of  detention,  and  the  slave 
or  her  then  value  compensates  the  whole  injury. 

This  is  the  injury  complained  of.  The  slave,  or  her  value,  is 
asked  in  the  declaration,  and  given  by  the  judgment ;  and  damages 
for  the  detention  are  also  to  be  settled  at  the  trial.  The  plea  puts 
these  matters,  as  well  as  the  title  of  the  plaintitf,  in  issue.  If  the 
title  only  is  found  for  him,  the  verdict  is  not  sufficient  to  authorize 
a  judgment  in  the  case,  unless  it  also  appears  by  the  verdict  that 
the  value  could  not  be  assessed.  It  is  as  necessary  so  to  assess  the 
value,  and  damages  for  detention,  as  to  assess  damages  in  assumpsit, 
where  the  plea  of  non  assumpsit  denies,  as  well  the  whole  debt  as 
the  particular  amount  of  damages  claimed.  The  value  and  dam 
ages  are  equally  within  the  issue  in  this  case  ;  and  evidence  is  as 


OF  THE  ACTION  TO  RECOVER  SLAVES.  421 

necessary  to  ascertain  them  to  the  jury,  as  to  prove  the  same  due 
in  assumpsit ;  and  the  defendant  is  equally  entitled  to  show  that 
they  are  less  than  claimed,  in  this  case  as  in  that.  The  plaintiff 
proves  the  value  of  the  slave,  or  the  value  of  her  labor  at  one 
time  ;  does  this  preclude  the  defednant  from  showing  that  she  was 
not  worth  so  much  at  that  time  1  Surely  not.  Will  he  be  denied 
the  right  of  proving  that  she  was  worth  less  at  a  subsequent  time, 
and  before  the  verdict?  Surely  not:  unless  the  plaintiff  has  the 
privilege  of  fixing  the  time  when  she  shall  be  valued  ;  but  the  law 
correctly  fixes  that  time  at  the  date  of  the  verdict.  Suppose  she 
had  not  been  dead  at  the  time  of  the  verdict,  but  both  her  arms 
had  been  amputated,  could  not  the  defendant  give  this  in  evidence 
on  the  inquiry  as  to  her  value  1  But  it  may  be  said,  the  jury  can 
not  find  that  she  is  dead,  for  if  so,  they  could  give  no  value,  and 
this  would  be  to  abate  the  suit ;  for  if  a  plaintiff  was  to  sue  for  a 
slave,  and  state  in  his  declaration  that  she  was  dead,  a  demurrer 
would  lie.  Admit  the  last  proposition  to  be  true,  yet  the  death  of 
the  slave  after  the  suit  could  not  be  pleaded  in  abatement  or  bar, 
any  more  than  payment  of  an  account,  or  any  part  of  it,  after  an 
action  of  assumpsit  brought,  or  the  delivery  of  property  after  de 
tinue.  The  plaintiff  will  recover  his  costs,  and  also  any  damages 
the  jury  may  assess,  and  such  matter  will  come  out  on  the  general 
issue  which  general  issue  involves,  as  before  said,  the  just  retribution 
to  which  the  plaintiff  is  then  entitled,  under  the  claim  in  his  declara 
tion.  But  the  verdict  is  for  Beck,  of  the  value  of  $475.  If  this  value 
has  been  ascertained,  as  the  law  say  sit  should  be,  at  the  time  of  the 
verdict,  on  what  principle  could  the  jury  find  that  though  she  was 
dead,  she  was  worth  that  sum  1  Is  not  such  verdict,  upon  its  face, 
manifestly  repugnant  and  void  1  The  action  of  detinue  is  little 
used  in  England ;  and  we  must  be  governed  by  general  principles 
and  by  analogy  to  the  redress  given  for  similar  injuries  ;  and, 
also,  by  considering  the  rights  of  the  defendant  after  judgment  in 
this  particular  action.  It  is  laid  down  in  one  case,  that  in  detinue 
for  charters,  if  the  issue  be  upon  the  detinue,  and  it  be  found  that 
the  defendant  hath  burnt  the  charters,  the  judgment  shall 
not  be  for  the  charters,  for  it  appears  he  cannot  have  them, 
but  he  shall  recover  the  value  of  the  land  in  damages. 
Rob.  Ab.  607. ;  Bac.  Ab.  title  "  Detinue,"  letter  B.  But  the  jury 
found  the  non-existence  of  the  thing  sued  for.  Regularly,  the 
judgment  must  be  for  the  thing  sued  for,  if  to  be  had  ;  if  not,  for 
the  value  ;  but  as  the  verdict  showed  the  thing  was  not  in  existence, 


422  SLAVERY. 

though  by  the  act  of  the  party  which  might  have  done  injury  to 
the  value  of  the  land,  yet  no  judgment  could  be  entered  for  it.  The 
law  will  not  do  a  vain  thing.  Here,  also,  and  that  too  by  the  act 
of  God,  which  prejudices  no  man,  the  thing  no  longer  exists  ;  and 
yet  I  am  asked  to  enter  judgment  for  it.  But  the  defendant  has 
a  right  to  deliver  the  property,  and  is  not  bound  to  pay  the  value. 
1  Morg.  Vade  Mecum,  416. ;  Kelw.  646. 

If,  then,  we  have  a  right  to  enter  a  judgment  for  a  dead  negro, 
he  must  have  a  right  to  deliver  the  corps,  otherwise  he  is  deprived 
of  the  power  thus  to  discharge  himself.  Surely  he  could  not  de 
liver  the  corpse  ;  and  yet  that  is  the  thing  for  which  we  must 
give  judgment  on  this  verdict.  We  cannot  expunge  that  part  of 
the  verdict,  though  we  may  set  it  aside  as  repugnant,  and  grant  a 
new  trial.  But  trover  will  lie,  although  the  property  be  dead,  be 
cause  the  time  of  the  conversion  gives  the  date  to  which  the  action 
relates ;  and  the  very  conversion  may  cause  the  death  of  the  pro 
perty.  Bac.  Ab.,  Trover,  D.  E.  The  recovery  in  that  action 
amounts  to  a  sale  of  the  property  at  the  time  of  the  conversion,  and 
vests  the  property  in  the  defendant,  lb.,  A. ;  Stra.  1078.,  from  that 
time ;  so  that,  if  he  has  sold  it  even  pending  the  suit,  or  before,  and 
the  plaintiff  never  gets  his  damages,  he  cannot  bring  detinue 
against  the  purchaser.  But  in  case  of  detinue,  the  property  is 
never  transferred  until  the  alternative  value  is  received.  It  con 
tinues  the  property  of  the  plaintiff  at  the  time,  and  after  judgment ; 
and  therefore,  in  this  case,  if  we  can  suppose  property  in  a  dead 
slave,  she  was  the  plaintiff's  property  at  and  after  the  judgment. 
She  was  certainly  his  property  when  she  died.  How  then  can  she 
have  died  the  property  of  the  defendant  ?  If  she  died  the  plaintiff's 
property,  can  the  defendant  be  compelled  to  pay  for  her,  as  though 
she  were  in  full  life,  and  thereby  acquire  title  to  her  1  Will  the  law 
compel  him  to  purchase  a  dead  slave  at  $475,  when  it  will  not 
compel  him  to  purchase  her  at  that  price  if  alive,  but  would  allow 
him  to  continue  the  property  still  in  the  plaintiff  by  delivering  her 
to  him  ? 

So,  too,  in  trover  ;  if  the  conversion  consists  altogether  in  a 
refusal  to  deliver  on  demand,  and  the  thing  is  then  dead,  or  had 
been  forcibly  taken  away  from  the  defendant,  no  action  will  lie. 
Bac.  Ab.,  Trover,  B.  G.  8.  And  even  in  trover  the  party  may 
discharge  himself  by  the  delivery  of  the  property,  and  damages 
will  be  assessed  accordingly  ;  but  this  must  be  done  at,  or  before 
trial,  and  by  the  assent  of  the  court.  If  he  cannot  do  this,  he 


OF  THE  ACTION  TO  RECOVER  SLAVES.  423 

must  stand  to  the  loss,  as  the  conversion  is  the  gist  of  the  action. 
Esp.  N.  P.  596.  The  most  I  could  do  in  this  case  would  be  to 
set  aside  the  verdict  as  imperfect  and  repugnant  on  its  face  ;  be 
cause  it  assesses  a  high  value  for  a  slave  who  is  found  to  be  dead  ; 
with  instruction  to  the  court  to  direct  the  jury,  that  if  they  find  pro 
perty  in  the  plaintiiT,  but  that  the  slave  is  dead,  they  must  find  this  last 
fact  specially  ;  and  in  that  case,  only  find  such  damages  for  the  de 
tention,  as  the  plaintiff  may  be  entitled  to  according  to  the  evidence. 

Brooke,  J.  The  question  in  this  case  is,  whether  the  finding  of 
the  jury,  that  the  slave  Beck  died  after  the  institution  of  the  suit, 
is  to  deprive  the  plaintiff  of  his  judgment  for  her  value.  A  correct 
decision  of  it  will  depend  on  an  accurate  view  of  the  nature  of  the 
action  and  the  pleadings. 

The  object  of  the  action  of  detinue  is,  to  recover  the  specific 
property  detained,  or  its  value,  and  damages  for  detention ;  it.  is,  like 
trover,  an  entire  action.  Judgment  for  the  defendant  is  a  good  bar,  in 
an  action  of  trover,  for  the  same  thing.  So,  a  judgment  in  trover 
gives  the  property  to  the  defendant,  and  is  a  bar  to  an  action  of 
detinue.  It  is  not  denied,  that  the  destruction  of  the  property 
before  trial  is  no  defence  in  the. latter  action.  In  that  action,  the 
question  is,  to  whom  did  the  property  belong  at  the  time  of  the 
conversion  1  And  its  object  is,  to  recover  the  value  thereof  in 
damages.  The  action  of  detinue  is  only  a  broader  action  ;  sub 
stantially,  it  is  the  same,  with  the  addition,  that  the  specific 
property  may  be  recovered,  if  to  be  had  ;  and  if  not,  the  alternative 
value  and  damages  for  detention.  The  alternative  is  given  to  meet 
the  accidents  that  may  happen  to  the  property  ;  which,  in  trover, 
would  be  an  unavailing  defence.  The  latter,  in  England,  is  most 
frequently  resorted  to,  because  of  the  wager  of  law,  which  would 
defeat  the  action  of  detinue.  Under  our  law.  that  objection  to  the 
action  of  detinue  does  not  apply  ;  and  it  is  a  valuable  remedy,  par 
ticularly  in  relation  to  property  in  slaves  ;  and  would  be  abandoned, 
if  the  destruction  of  the  property  was  to  defeat  it  ;  the  action  of 
trover  would  be  preferred.  According  to  the  form  of  the  action  of 
detinue,  also,  it  cannot  be  maintained  for  the  hire  of  the  property, 
and  damages  for  its  detention  only.  In  both  actions,  the  value  of 
the  property  must  be  recovered,  or  nothing.  So,  that  in  this  case, 
if  the  death  of  the  slave  is  to  avail,  the  judgment  must  be  for  the 
defendant  as  to  her.  No  example  can  be  shown,  of  a  judgment 
in  detinue  for  a  personal  chattel  in  which  value  is  omitted.  The 
case  from  Roll  of  charters,  has  very  little  application.  The  action 


424  SLAVERY. 

for  charters  is  a  mixed  action ;  it  partakes  of  the  realty ;  there 
may  be  summons  and  severance.  In  detinue  for  a  chattel,  a  capias 
lieth  ;  not  so  for  charters.  Co.  Litt.  286.  But  even  in  that  case, 
"the  judgment  was  for  the  value  of  the  thing,  which  was  substan 
tially  the  object  of  the  suit.  In  the  absence  of  all  direct  precedent, 
therefore,  I  infer,  even  from  that  case,  that  no  judgment  can  be 
rendered  in  detinue,  omitting  the  value  of  the  property  in  contro 
versy.  An  omission  to  find  the  value  of  the  slave  Beck,  in  this 
case,  by  the  jury,  would  have  rendered  the  verdict  imperfect,  and 
no  judgment  could  have  been  given  on  it  for  hire  and  damages  only. 
The  finding,  then,  by  the  jury,  that  the  slave  Beck  was  dead,  was 
irrelevant  to  the  issue  ;  otherwise,  a  verdict  for  hire  and  detention 
of  the  property  would  be  a  perfect  verdict,  on  the  principle,  that 
whatever  a  jury  may  find  on  a  special  verdict,  they  will  be  presumed 
to  have  found  on  a  general  verdict,  if  that  verdict  is  questioned. 
So  much  for  the  nature  of  the  action.  The  pleadings,  generally, 
are  the  best  texts  of  the  law.  The  plea  of  now  detinet  traverses  the 
allegations  in  the  declaration,  and  puts  it  upon  the  plaintiff  to  prove 
them. 

As  to  the  possession  in  the  defendant,  that  need  only  be  proved, 
either  at  the  suing  out  of  the  writ,  or  at  some  time  before.  In  the 
case  of  Barnley,  v.  Lambert,  1  Wash.  Rep.  308.,  that  was  the  de 
cision  of  this  court.  That  decision  excludes  any  other  period;  it 
is  not  incumbent  on  the  plaintiff  to  prove  possession  in  the  defend 
ant  at  any  after  period.  Having  proved  property  in  himself,  and 
possession  in  the  defendant  at  or  before  suing  out  his  writ,  and 
value,  the  proof  of  the  plaintiff  is  complete  ;  and  it  follows,  that  any 
negative  proof  by  the  defendant,  as  to  the  possession  after  the 
writ,  would  be  improper. 

But  it  is  contended,  that  proof  of  the  death  of  the  slave  relates  to 
the  value,  and  not  to  the  possession.  Is  it  correct  to  say,  that 
proof  of  the  non-existence  of  the  thing  is  proof  of  its  value  ?  Va 
lue  is  a  question  of  plus  or  minus.  The  inquiry  presupposes  the 
existence  of  the  property,  and  possession  in  the  defendant.  It 
goes  to  show,  that  he  was  not  in  the  possession  of  the  slave  Beck 
at  the  time  of  the  trial  ;  that  is,  that  he  was  not  in  a  condition  to 
deliver  her  to  the  plaintiff,  which  is  interdicted  by  the  decision  be 
fore  referred  to.  The  plea  relates  to  the  time  of  suing  out  the 
writ,  or  to  some  previous  period  as  regards  the  possession,  and 
not  to  a  time  subsequent,  according  to  that  decision.  Proof,  there 
fore,  that  the  defendant  had  lost  the  possession,  by  death  or  other- 


OF  THE  ACTION  TO  RECOVER  SLAVES.  425 

wise,  at  a  later  period,  was  irrelevant  to  the  issue  ;  and  the  jury  hav 
ing  found  the  fact,  that  finding  is  mere  surplusage  :  the  rule  being 
that  utile  per  inutile  non  vitiatur.  For  these  reasons,  I  think  the  judg 
ment  erroneous  ;  that  it  ought  to  he  reversed,  and  that  judgment 
should  be  rendered  for  the  value  of  the  slave  who  died  after  the 
action  was  commenced. 

Roane,  J.   This  was  an  action  of  detinue,  brought  by  the  appel 
lant,  in  the  superior  court,  to  recover  three  negroes,  stated  to  be 
of  separate  and  specified  values.     Among  them  is  the  negro  Beck, 
stated  in  the  declaration  to  he  of  the  value  of  $400.     The  damages 
are  laid  at  $1200.      Issue  was  joined  on  the  plea  of   non  detinet. 
In   September  1817,  the  jury  found   "for  the  plaintiff,  the  negro 
Beck,  of  the  value  of  $475,"  and  the  two  other  negroes  at  speci 
fied  values  ;  but  find    no  damages.     They  further  find,  that   the 
negro  Beck  died  "  since  the  institution  of  this  suit,"  to  wit,  during 
the  present  year.     The  judgment  in  the  superior  court  was,  that 
the   plaintiff  recover  the  other  two  negroes,  of  the  values  respec 
tively  found,  if  to  be  had  ;  and  if  not,  their  respective  values.     No 
judgment  being  given  for  Beck,  or   her  value,  the  jury  having 
found,  that  she  died  since  the  institution  of  the  suit,  in  the  present 
year.     From  this  judgment  the  appellant   obtained  a  supersedeas 
to   this  court;  and   the  question  now  is,  whether  the  judgment 
aforesaid,  as  it  omits  to  give  a  judgment  for  the  negro  Beck,  be 
correct  or  not.     That  judgment,  as  to  her,  can  only  be  justified, 
by  taking  the  date  of  the  finding,  and  not  that  of  the  institution  of 
the  suit,  as  the  criterion,  as  well  in  relation  to  the  right  of  property 
itself,  as  to  settling  its  alternate  value.     This  question  is  to  be  de 
cided  as  upon  the  present  pleadings.     I  shall  enter,  therefore,  into 
no  inquiry,  whether  the  action  will  lie  for  a  negro  that  is  dead,  at 
the  time  of  the  institution  of  the  suit ;  or  for  one  dying  after  the  in 
stitution  of  the  suit ;  and  respecting  which,  the  jury  are  permitted 
by  the  pleadings  (if  there  be  such  a  case)  to  inquire  into  that  fact, 
as  at  such  posterior  time,  and  at  the  date  of  the  verdict.     In  order 
to  simplify  this  case,  too,  1  will  consider  this  action  as  having  been 
brought  only  for  the  negro  Beck.     There  can  be  no  difference  in 
principle  between  that  case   and  the  one  before  us. 

It  is  a  general  principle  of  law,  that  the  evidence,  the  pleadings, 
and  the  verdict,  all  have  reference  to  the  time  of  instituting  the  suit. 
Thus,  as  to  the  evidence,  it  was  held  in  1  Munf.  Rep.  22.,  (Harri 
son  v.  Brocks,)  that  an  award  made  after  the  institution  of  the  suit 
was  not  permitted  to  be  given  in  evidence  on  the  plea  of  non-as- 
54 


426  SLAVERY. 

sumpsit.    As  to  the  pleadings,  it  was  held,  in  the  case  of  Smith  v. 
Walker,  1  Wash.  Rep.  135.,  that  the  pleaof  the  act  of  limitations  was 
had,  for  referring  to  the  time  of  the  plea,  instead  of  that  of  the  in 
stitution  of  the  suit.  And  a  similar  plea  was  held  to  be  bad,  and  is 
sue  joined  thereupon  immaterial  in  the  case  of  Henderson  v.  Light- 
foot,  1  Call's  Rep.  241.     As  to  the  verdict,  the  case  of  Burnley  v. 
Lambert,  1  Wash.  Rep.  308.,  is  more  than  an  authority.   It  not  only 
negatives  the  idea  that  the  verdict  relates  to  the  time  of  its  rendi 
tion,  but  asserts  that  it  has  relation,  as  to  the  possession,   to  a  time 
anterior  to  that  of  the  institution  of  the  action,  namely,  to  the  day 
mentioned  in  the  declaration.   It,  therefore,  goes  beyond  the  point' 
that  I  have  occasion  to  contend  for  in  the  present  instance,  namely, 
that  of  the  institution  of  the  suit,   and  is  a  full  and  pointed  autho 
rity.     Mr.  Marshall,  as  counsel  for  the  appellee  in  that  case,  while 
he  admitted,  that  if  the  property  should  perish,  or  be  disposed  of, 
after  the  action  was  brought,  the  plaintiff  might  recover  the  alter 
native  value,    (which  could  not  be  the  alternative  value,  as  at  the 
time  of  rendering  the  verdict,)  contended,  that  the  time  of  the  in 
stitution  of  the  action,  and  not  a  prior  time,  formed  the  criterion 
as  to  the  proof  of  possession.  He  contended  for  this  on  the  ground 
that  the  plea  and  declaration  were  in  the  present  tense,  and  there 
fore  related  to  the  time  of  the  institution  of  the  suit.     The  court 
overruled  this  argument,  by  saying,  that  it  proved  too  much ;  that 
it  would  equally  prove  that  possession  must  be  shown  to  be  in  the 
defendant,  not  only  at  the  time  of  issuing  the  writ,  but  also  at  that 
of  rendering  the  verdict.     This  decision,  therefore,   is  a  clear  au 
thority,  that  notwithstanding  the  verdict  may  also  use  words  in  the 
present  tense,  they  do  not  justify  an  inquiry  into  the  fact  of  posses 
sion  as  at  that  time,  but  relate  to  the  time  put  in  issue  by  the  plead 
ings.  This  idea  is  farther  corroborated  by  several  cases  in  this  court. 
In  the  cases  of  Newby's  Adm'r  v.  Blakey,    3  Hen.  &  Munf.  57   ; 
and  Elam  v.  Bass'  Ex'rs,  4  Munf.  Rep.  301.  ;  it  was  held,   that  a 
defendant  may  protect  himself  on  the  plea  of  non  detinct,  by  proof 
of  five  years  possession  of  the  negroes  before  the  emanation  of  the 
writ.     If  a  plaintiff  lies  by,  without  bringing  a  suit,  for  more  than 
five  years,  he  is  not  permitted  to  recover ;  and  the  five  years  vests 
a  title  in  the  defendant.     But  this  inference  would  be  very  unjust 
in  relation  to  a  plaintiff  who  has  committed  no  laches  ;  but,  on  the 
contrary,    has  brought  his  suit  within  one  month  after  he   lost  the 
possession,  merely  because  the  time  of  rendering  the  verdict  was 
protracted,  by  the  delays  of  the  court  and  the  management  of  the 


OF  THE  ACTION  TO  RECOVER  SLAVES.  427 

defendant,  to  a  longer  period  than  five  years  from  the  inception  of 
the  defendant's  possession.  These  principles,  and  these  cases, 
then,  clearly  prove  that  the  jury  were  limited  by  the  pleadings,  in 
this  case,  to  the  proof  of  a  possession,  as  at  the  time  of  the  insti 
tution  of  the  suit,  and  had  no  right  to  receive  evidence,  or  find  a 
verdict,  touching  the  non-existence  of  that  possession,  as  at  the 
time  of  rendering  the  verdict.  That  was  a  point  ulterior  to  the 
one  made  by  the  pleadings.  It  was  not  in  issue,  and  therefore  it 
was  irregular  to  offer  evidence  in  relation  to  it,  or  find  it  by  the  ver 
dict.  If  the  plaintiff  could  have  foreseen  from  the  pleadings  that 
such  evidence  would  have  been  offered,  he  might  have  repelled 
that  evidence,  and  the  result  might,  as  to  the  actual  death  of  the 
negro,  have  been  entirely  different.  We  can,  therefore,  not  know 
this  fact  in  this  case,  and  are  to  decide  the  case  as  if  it  were  not  in 
the  record.  That  fact  is,  in  truth,  not  before  us,  which  is  precluded 
by  the  issue  between  the  parties,  and  to  which  the  evidence  and 
verdict  have  been  illegally  and  irregularly  extended.  We  are  also  to 
bear  in  mind,  that  although  the  negro  is  emphatically  found  to  be 
dead,  it  is  but  little  more  than  finding,  that  she  was  not  in  the  pos 
session  or  power  of  the  defendant  at  the  time  of  rendering  the  ver 
dict.  It  is  unimportant  from  what  cause  this  want  of  possession  pro 
ceeded,  whether  from  the  natural  death  of  the  subject  sued  for,  or, 
for  example,  by  wilful  destruction  of  it  by  the  defendant  after  the 
institution  of  the  action.  In  the  last  case,  it  would  scarcely  be 
contended,  that  the  defendant  should  avail  himself  of  his  wrong  to 
defeat  the  plaintiff's  action,  if  this  fact  were  even  found  by  a  special 
verdict. 

If  this  evidence,  therefore,  ought  not  to  have  been  received,  nor 
the  verdict  extended  to  the  present  point,  what  is  to  be  done  in  the 
actual  case  before  us  1  The  verdict  in  question  is  a  general  ver 
dict,  and  not  a  special  one.  It  is  not  a  special  one,  because  it 
submits  no  question  of  law  to  the  decision  of  the  court.  It  is  not 
a  special  verdict,  for  the  further  reason,  that  a  jury  ought  not  to 
submit,  in  such  a  verdict,  a  matter  which  is  not  pertinent  to  the 
issue,  and  much  less  one  which  is  entirely  out  of  that  issue.  7  Bac.  4. 
If  the  issue  relates  to  the  possession,  as  at  the  date  of  the  writ,  it  is 
entirely  foreign  to  that  issue  to  inquire  thereof  as  at  the  time  of 
finding  the  verdict.  This  verdict,  however,  is  not  bad  on  account 
of  its  finding  ;  also  this  matter,  which  is  not  in  issue  in  the  cause, 
after  having  found  the  negro  in  question  "  for  the  plaintiff."  The 
finding  of  that  which  is  within  the  issue*  is  not  vitiated  by  finding 


428  SLAVERY. 

that  which  is  not.  In  such  cases  utile  per  inutile  non  vitiatur ;  and 
that  which  is  not  within  the  issue  will  be  rejected  as  surplusage, 
the  jury  having  nothing  to  do  with  it.  7  Bac.  p.  26.  Thus,  in  an 
action  of  assumpsit  against  an  executor,  on  a  promise  by  his  testa 
tor,  and  issue  was  taken  on  the  plea  of  non  assumpsit,  the  jury  found 
for  the  plaintiff,  but  they  likewise  found  that  the  testator  was  dea:1 
before  the  day  on  which  the  promise  was  alleged  to  have  been 
made.  The  verdict  was  held  to  be  good,  and  the  last  part  rejected, 
on  the  principle  of  its  being  surplusage,  and  not  within  the  issue. 
7  Bac.  22.  In  principle,  there  is  no  difference  between  this  case 
and  the  one  before  us.  Again,  it  is  a  rule,  that  if  the  jury  find 
any  thing,  which  is  contrary  to  what  is  confessed  in  the  pleadings, 
the  verdict,  as  to  so  much,  is  bad,  and  it  is  to  be  rejected  as  sur 
plusage  ;  for  the  jury  have  nothing  to  do  with  what  is  confessed  or 
admitted  by  the  pleadings.  7  Bac.  41.  In  the  case  before  us, 
the  pleadings  are  not  only  restricted  to  the  date  of  the  writ,  as  to 
the  fact  of  possession,  but  the  existence  of  the  subject  seems  admit 
ted.  On  these  pleadings  the  defendant  may  object,  that  he  does 
not  detain  the  negro,  but  that  another  man  does  ;  or  he  may  say, 
that  he  does  not  detain  the  plaintiff's  negro,  because  she  is  his 
property,  and  not  that  of  the  plaintiff.  But  on  this  issue,  it  could 
never  for  a  moment  be  considered  that  the  existence  of  the  negro 
was  denied.  If  a  tenant  in  dower  pleads,  that  the  demandants 
did  not  die  seized  of  the  premises,  and  issue  is  joined  on  that  plea  ; 
and  the  jury  that  he  died  seized,  but  further  find,  that  the  estate 
was  not  liable  to  dower,  the  latter  part  of  the  verdict  is  bad,  as 
finding  what  is  virtually  confessed  by  the  plea.  7  Bac.  41.  Again, 
it  is  held  that  the  plea  of  non  cepit  in  replevin,  confines  the  issue  to 
the  taking,  and  allows  the  property  to  be  in  the  plaintiff;  and, 
therefore,  no  evidence  shall  be  received,  or  verdict  found  on  this 
plea,  to  disprove  the  property  of  the  plaintiff.  2  Esp.  11.  So,  in 
debt  on  a  bond  to  perform  an  award  made  by  J.  S.,  the  plea  was, 
that  J.  S.  made  no  such  award,  and  issue  ;  the  jury  found  J. 
S.  made  the  award,  but  also  found  matter  in  avoidance  thereof; 
the  last  part  of  the  verdict  was  held  to  be  bad,  and  was  rejected, 
because  it  was  contrary  to  the  issue.  7  Bac.  41.  These  cases, 
by  analogy,  completely  justify  a  rejection  of  the  last  part  of  the 
verdict  before  us,  as  being  contrary  to  what  is  put  in  issue,  and  is 
admitted  by  the  pleadings. 

The  decisions  of  this  court  completely  show,  that  the  verdicts  of 
juries  may  be  extended  by  the  clerk  from  the  general  form  in  which 


OF  THE  ACTION  TO  RECOVER  SLAVES.  429 

they  are  found.  This  verdict,  so  extended,  would  be,  that  the  de 
fendant  does  detain  the  negro  in  question,  and  that  she  is  of  the 
value  of  $375.  The  subsequent  finding  of  the  fact,  that  she  is  dead, 
is  clearly  repugnant  to  such  extended  finding,  and  is  to  be  rejected. 
By  the  first  part  of  the  verdict,  the  jury  not  only  find  the  result  in 
favor  of  the  plaintiff,  but  find  the  fact  also  which  justifies  that  result, 
and  which  is  repugnant  to,  and  overrules  the  latter  finding.  That 
complete  finding  by  them,  so  compounded  of  law  and  fact,  is  not 
to  be  varied  by  any  subsequent  and  irregular  finding,  on  which 
they  have  erected  no  counter  conclusion,  nor  authorized  the  court 
to  draw  one.  Such  an  authority  can  only  be  devolved  on  the  court 
by  a  special  verdict.  If  this  action  were  brought  for  this  single 
negro,  who  had  been  for  years  withheld  from  the  plaintiff,  and 
whose  hires  were  considerable  ;  if  on  the  ground  in  question,  the 
right  to  the  principal  subject  was  defeated,  that  to  the  hires  or 
damages  could  not,  I  apprehend,  be  sustained  ;  and  yet,  this  would 
be  a  case  of  extreme  hardship,  as,  at  the  time  of  the  emanation  of 
the  writ,  the  right  to  both  was  perfect.  The  damages  follow  as 
incidental  to  the  recovery,  but  cannot  be  obtained,  in  this  action, 
without  it.  It  has  been  argued,  that  you  must  receive  this  evidence 
as  at  the  time  of  the  verdict,  because  that  time  is  the  criterion  as 
to  settling  the  alternative  value.  This  has  never  been  solemnly  es 
tablished  by  this  court,  nor  would  the  inference  clearly  result  from 
it,  if  it  had.  In  the  case  of  Bigger's  adm'r  v.  Alderson,  (1  Hen.  & 
Munf.  Rep.  54.,)  Judge  Carrington,  indeed,  gave  this  as  his  opinion, 
but  the  other  judges  were  silent  on  the  subject ;  and  the  judgment 
which  was  given  in  that  case  did  not  affirm  this  principle.  For  any 
thing  appearing  in  that  case,  the  value  was  settled  at  an  anterior 
time,  and  at  the  time  of  suing  out  the  writ.  As  for  the  English  de 
cisions,  they  are  so  scanty  on  the  action  of  detinue,  that  I  can  find  in 
them  nothing  decisive  on  this  point.  It  is  arguing  in  a  circle  to  say, 
that  unless  this  be  the  rule,  the  plaintiff  would  get  too  little  for  his 
property.  He  would  so,  in  relation  to  a  subject  of  increasing  va 
lue  ;  but  it  may  be  retorted  that  he  would  get  too  much  in  relation 
to  a  subject  of  a  contrary  character  ;  and  as  to  a  subject  of  stable 
value,  it  is  immaterial  which  rule  is  to  prevail. 

If,  however,  this  could  be  considered  as  the  settled  law,  in  rela 
tion  to  the  alternative  value,  it  does  not  follow  that  it  would  attract 
to  it  the  principal  inquiry  relative  to  the  possession  of  the  subject 
itself.  It  would  not  change  the  issue  made  up  between  the  parties, 


430  SLAVERY. 

as  to  the  right  of  the  property,  and  which,  in  terms  at  least, 
also  extends  to  the  alternative  value.  In  the  case  of  judgment 
for  the  negro  by  default,  or  on  demurrer,  and  a  writ  of  injury 
•  issued  thereafter,  to  ascertain  the  value,  if  the  time  resorted  to, 
as  to  the  last,  be  that  of  the  verdict,  the  time  in  relation  to  the  first 
is  undoubtedly  different ;  it  is,  at  least,  that  of  suffering  the  judg 
ment,  if  not  that  of  the  date  of  the  writ.  I  apprehend,  therefore, 
that  the  position  in  question  is  neither  shown  to  be  solemnly  settled, 
nor  would  the  inference  contended  for,  clearly  result  from  it,  if  it 
were.  As  for  the  criterion  now  contended  for,  it  would  destroy 
the  action  of  detinue  altogether,  in  cases  in  which  the  suit  is  long 
protracted,  and  the  subject  sued  for  is  of  a  decaying  and  perish 
able  nature.  The  ground  taken,  however,  in  this  opinion,  does 
not  extend  to  cases  in  which  the  subsequent  death  of  the  negro  is 
relied  on,  by  plea  puis  darrein  continuance,  or  otherwise ;  and  in 
which  the  plaintiff  had,  consequently,  an  opportunity  to  contest 
that  point  upon  the  evidence. 

If  the  criterion  assumed  by  the  last  part  of  the  verdict  be  sus 
tainable,  the  plaintiff  ought  to  have  an  opportunity  to  be  heard 
upon  it.  I  decide  nothing,  however,  upon  that  point ;  I  only  de 
cide  upon  the  actual  case  which  is  now  before  us,  upon  the  plead 
ings.  As  long,  therefore,  as  we  are,  in  rendering  our  judgment, 
to  respect  the  allegata  and  probata  of  the  parties  ;  as  long  as  we 
are  to  shut  our  eyes  against  facts  which  are  not  known  to  us  upon 
the  pleadings,  and  are  to  reject  impertinent  matter  which  juries 
may  put  into  their  verdicts,  we  must  decide  this  case  for  the  ap 
pellant.  We  must  so  decide  it,  however  the  case  might  be,  if, 
through  the  laches  of  the  appellant,  the  slave  had  been  permitted 
to  die  before  his  right  had  attached  by  bringing  the  action.  My 
opinion  is,  therefore,  and  such  is  the  opinion  of  the  court,  that  the 
judgment  of  the  superior  court  be  reversed,  and  entered,  also,  for 
the  slave  in  question,  if  to  be  had,  and  if  not,  for  her  alternative 
value. 

8 

EPPES   v.    M'LEMORE.     Dec.    T.   1832.    3.  Devereaux's  North 
Carolina    Rep.  345. 

agreed6  A'  Detinue  for  a  slave-  Tne  case  was»  tna*  the  slave  in  dispute 
purchase  a  had  been  the  property  of  the  plaintiffs  husband,  and  was  sold  under 
Ba,Vbut°r  an  execution  against  his  executor,  and  bought  by  one  Johnson,  who 
tl0e°U)thhira"  pa'ltl  the  P1irchase  money»  and  to  whom  the  sheriff  returned,  he 
self,  andaf-  had  sold.  The  only  question  was,  whether  the  following  circumstan- 


OF  THE  ACTION  TO  RECOVER  SLAVES.  431 

ces  vested  the  title  in  the  plaintiff,  so  as  to  prevent  the  defendant  terwards, 
from  taking  any  thing  under  a  subsequent  sale  to  him  by  Johnson. 


The  negro  had  been  in  possession  of  the  plaintiff  before  the  sale  the  P°sses- 

by  the  sheriff,  and  directly  aft  jr  it  returned  to  her  house.     A  wit-  the  pur- 

ness,  introduced  by  the  plaintiff,  deposed,  that  before  the  sale  John- 

son  agreed  to  purchase  the  negro  for  the  plaintiff;  that  after  that 

took  place,  the  plaintiff  offered  to  pay  Johnson  the  price  at  which  A,  who  de- 

he  had  bought  the  slave,  which  he  then  declined  receiving,  request-  king  it,  but 


ing  her  to  keep  it  ;  that  at  the  time  this  offer  was  made,  the  plain- 
tiff  had  the  money  in  her  possession,  but  it  was  not  produced  in  title:  held, 
consequence  of  Johnson's  wish  that  the  plaintiff  should  retain  it.  ry  were 
Upon  this  point,  the  evidence  was  contradictory,  and  thereupon  the  J^^cled 
counsel  for  the  defendant  moved  the  presiding  judge  to  instruct  the  that  they 

s  J  might  from 

jury,  that  if  Johnson  purchased  the  slave  at  the  request,  and  for  these  facts 
the  use  of  the  plaintiff,  as  the  slave  was  bid  off  and  returned  by  the 
sheriff  as  purchased  by  him,  the  legal  title  vested  in  him,  subject  sale- 
only  to  a  trust  for  the  plaintiff,  and  that  the  matters  deposed  to  by 
the  plaintiff's  witness  were  not  sufficient  to  vest  that  legal  title  in 
the  plaintiff;  and  further,  that  the  legal  title  being  in  Johnson, 
could  not  be  passed  to  the  plaintiff  without  a  written  transfer,  or  a 
sale  accompanied  with  a  delivery.  But  his  honor  refused  to  give 
these  instructions,  and  charged  the  jury,  that  if  they  believed  that 
Johnson  purchased  the  slave  at  the  request  of,  and  as  the  agent  of 
the  plaintiff  ;  and  delivered  the  negro  to  her  as  her  property  ;  that 
the  price  bid  by  Johnson  was  tendered  to  him  at  the  time  of  the 
delivery,  and  was  not  paid  because  of  his  request  ;  or,  if  he  was 
satisfied  with  the  plaintiff's  promise  to  pay  him  the  amount,  they 
were  at  liberty  to  find,  that  there  was  a  valid  sale  by  Johnson  to 
the  plaintiff.  A  verdict  was  returned  for  the  plaintiff,  and  the  de 
fendant  appealed. 

Per  Cur.  Ruffin,  J.  I  suppose  the  first  instruction  prayed  on 
behalf  of  the  defendant  to  be  correct,  as  far  as  respects  the  vesting 
of  the  legal  title  in  Johnson,  by  the  purchase  in  his  own  name, 
and  his  becoming  responsible  to  the  sheriff  for  the  price,  notwith 
standing  the  previous  agency  undertaken  by  him.  If  he  chose  to 
violate  his  engagement,  and  to  take  the  title  to  himself,  he  might 
do  so.  But  if  he  did,  that  did  not  prevent  a  subsequent  sale  to  the 
plaintiff,  and  that  brings  the  question  to  the  last  part  of  that  instruc 
tion,  and  to  the  next,  as  asked  for  :  which  is,  that  the  evidence  did 


432  SLAVERY. 

not  establish  a  sale  from  Johnson,  or  that  the  legal  title  passed  from 
him  in  any  way.  The  court  is  of  opinion  that  the  jury  might  find 
that  it  did.  The  possession  of  the  slave  was  transferred  to  the 
plaintiff,  who  offered  to  pay  an  ascertained  price,  which  Johnson 
agreed  to  accept.  It  is  true,  the  witness  says,  this  was  in  refer 
ence  to  the  previous  agreement  of  Johnson  to  buy  the  negro  for 
the  plaintiff;  and,  therefore,  there  was  then  no  proposition  about 
the  price.  But  although  the  plaintiff  claimed  upon  the  score  of 
the  agency,  because  she  did  not  know  that  the  purchase  had  been 
made  in  Johnson's  own  name ;  yet,  when  Johnson  acquiesced  in  it, 
and  made  the  plaintiff  believe  that  she  had  thus  the  title  in  one 
way,  when,  in  fact,  she  was  getting  it  in  another,  the  plaintiffs  mis 
take,  as  to  the  mode  in  which  it  passed,  shall  not  prevent  her  from 
acquiring  it  in  any  mode,  if  the  acts  then  done,  in  their  legal  ope 
ration,  passed  the  title  of  themselves. 

Did  the  plaintiff  and  Johnson  then  consider  that  the  right  to  the 
slave  was  in  the  former,  by  virtue  of  what  was  before  and  then 
done?  Was  every  thing  done,  that  was  expected  or  intended  to 
be  done,  to  vest  the  title  in  the  plaintiff?  and  was  this  followed  or 
accompanied  by  actual  delivery  1  If  so  it  is  a  sale.  It  is  an  agree 
ment  that  the  property  is,  or  shall  be  another's,  and  that  agree 
ment  consummated  by  delivery.  Suppose  Mrs.  Eppes  had  then 
paid  the  price,  would  any  body  doubt  the  character  of  the  transac 
tion  1  Her  agreement  to  pay  is  the  same  thing,  if  taken  by  the 
seller  in  place  of  the  money ;  and  such  the  witness  said  was  the 
fact.  Upon  the  conflicting  testimony,  it  was  for  the  jury  to  deter 
mine.  Taking  that  offered  by  the  plaintiff  to  be  true,  there  was  a 
contract  of  sale,  which  accompanied  by  possession,  is  an  executed 
contract,  and  valid.  Choat  v.  Wright,  2  Dev.  Rep.  289. 

9. 
KEITH  v.  JOHNSON  et  al.     Fall  T.  1833.     1  Dana's  Rep.  604. 

In  detinue 

a  tender  of  Held  by  *he  court,  that  the  plaintiff  in  a  judgment  in  detinue 
nat  ^af"  mav  naye  an  execution  issued  for  the  specific  slave  or  thing  re- 
will  not  covered,  and  a  tender  of  the  alternate  value  will  not  discharge  the 

discharge      .  . 

the  judg-  judgment,  unless  the  plaintiff  elects  to  take  it,  01  the  court  is  satis- 
iTs^theTe-  fied>  tnat  without  the  defendant's  fault  it  is  beyond  his  power — 
fendant  is  tne  officer  must  take  the  posse  comitatus,  if  necessary,  and  seize 

unable  to 

deliver  the  the  slave  or  thing  recovered,  and  for  that  purpose  he  may  make 

specific 
slave. 


ACTION  TO  RECOVER  SLAVES.  ,    433 

forcible  entry  into  the  defendant's  dwelling-  house,  if  he  finds  it 
closed,  and  has  good  reason  to  believe  the  slave  or  thing  is  there. 

10. 
KENT  v.  ARMISTEAD.    Oct.  T.  1813.     4  Mtmf.  Rep.  72. 

The  court  held,  that  a  declaration  in  detinue  for  a  slave  is  insuf-  The  own- 
ficient  to  support  the  action,  if  it  omit  to   state  that  the  slave  be- 


longed  to  the  plaintiff.  must  be 

stated, 

II. 

HOLLADAY    AND    WIFE     V.    LlTTLEPAGE.      March     T.     1813.       2 

Munf.  Rep.  539.  ;  ROYAL  v.  EPPES,  2  Munf.  Rep.  p.  479. 

Detinue  for  a  negro  woman  slave  Amy,  and  her  issue,  of  the  And  the 
value  of  $1000,  and  Rachel,  a  negro  woman  slave  and  her  issue, 
of  the  value  of  $1000.  Plea  non  detinet.  Motion  in  arrest  of 
judgment,  on  the  ground  that  the  declaration  was  vague  and  un 
certain,  in  demanding  the  issue  of  two  negro  women  therein  men 
tioned.  The  district  court  arrested  the  judgment,  and  the  plain 
tiff  appealed  to  this  court. 

The  president  observed,  that  the  court  were  of  opinion,  that 
the  omission  to  state  the  names  of  the  issue  of  the  female  slaves 
in  the  declaration  mentioned,  being,  at  most,  only  a  fact  imper 
fectly  stated,  and  that  the  judgment  of  the  district  court  ought 
to  be  reversed.  The  defect  is  cured  by  the  verdict,  which  finds 
the  names  of  the  issue  of  the  female  slaves  in  the  declaration 
mentioned, 

12. 

MITNSEL,  ADM'R  OF  SNEED  v.  BARTLETT.  April  T.  1831.  6  J. 
J<  Marshall's  Ptep.  20.;  S.  P.  WOODWARD'S  HEIRS  v.  THERL- 
KELD,  1  Marsh.  Rep.  10.  ;  THOMAS  v.  WHITE  et  al,  3  Litt. 
177.;  SNEED  v.  EWING  AND  WIFE,  5  J.  J.  Marshall's  Rep, 

482.  An    heir 

cannot 

Per  Cur.     Buckner*  J.     The  law  is  certainly  fully  established  raainta|n 

an   action 

that  an  heir  cannot  maintain  an  action  in  his  own  name  for  the  re-  in  his  own 
covery  of  slaves  belonging  to  the  estate  of  his  ancestor,  without  thTrecove- 
having  previously  obtained  the  assent  of  the  administrator.  They  ^Jjf^J^ 
are  assets  in  the  hands  of  the  administrator  ;  and  for  the  payment  assent  of 

,,     ,  ./>  .,  ,  the  admin- 

of  the  debts  of  the  intestate,  he  may  sell  them,  it  it  be  necessary, 


434  SLAVERY. 

13. 

GRIMES  v.  GRIMES.  Spring  T.  1812.    2  Bibb's  Rep.  594. 

^ethede-       Held  by  the  court,  Boyle,   Ch.  J.,  that  a  devisee  of  slaves  may 

without  the  maintain  detinue  without  the  assent  of  the  executor  ;  they  being  con- 

execut' 

assent. 


executor's     .j       j        * 

sidered  real  estate. 


14. 

Cox  v.  EX'RS  OF  ROBINSON.  Fall  T.  1809.    1  Bibb's  Rep.  604. 

No  de-  Held  by  the  court,  Bibb,  Ch.  J.,  that  no  demand  other  than  the 

mand  other         .A  . 

than  the  wnt  1S  necessary  to  maintain  the  action  of  detinue.  Property  in 
Pessary  to"  the  Plamtiff>  and  possession  in  the  defendant  anterior  to  the  suit, 
maintain  are  material  grounds  of  this  action.  Burnley  v.  Lambert,  1  Wash, 
for  slaves.  Rep.  308. ;  Crozier  v.  Gano  and  wife,  1  Bibb's  Rep.  257. 

15. 

Cox  v.  EXECUTORS  OF  ROBINSON.  Fall.  T.  1809.    1  Bibb's  Rep. 
604. ;  STAMPS  v.  BE  ATT  Y,  Hard.  Rep.  337. 

Executors 

and  admin-       per  Bibb,  Ch.  J.     Slaves  pass  to  executors  and  administrators, 

istrators 

may  main-  and  they  may  maintain  an  action  of  detinue  for  them. 

tain  an  ac 
tion    for 
slaves. 


(XXII.)    OF  STEALING  AND  KIDNAPPING  SLAVES. 

1. 

STATE  v.  WHYTE  AND  SADLER.     Nov.    T.    1819.     2  Nott  & 
M'Cord's  Rep.    174. 

A  slave  Prohibition  to  restrain  the  defendants,  as  magistrates,  who  had 

may  be  convicted  a  negro  man  named  Billy,  for  stealing  a  negro  woman 
stealing  a  named  Hannah.  The  prohibition  was  moved  for,  on  the  ground 
no  force'be  tnat  stealino  a  s^ave  by  a  slave  cannot  be  consummated  unless  force 
used.  is  employed  by  the  slave  charged  with  the  felony,  there  being  no 
proof  of  force  in  this  case. 

Per  Cur.  Colcock,  J.  The  act  of  1790  expressly  declares, 
that  "  if  any  slave  shall  feloniously  steal,  take,  or  carry  away,  any 
slave  being  the  property  of  another,  with  an  intent  to  carry  such 
slave  out  of  this  province,  he  shall  suffer  death  as  a  felon."  This 
is  one  of  the  charges  in  the  indictment.  And  as  to  the  objection, 
that  force  is  necessary  to  constitute  the  offence,  I  think  it  wholly 


OF  STEALING  AND  KIDNAPPING  SLAVES.  435 

untenable.  If  there  never  had  been  any  other  law  upon  the  sub 
ject,  I  should  have  said,  that  to  entice  a  slave  to  leave  his  master 
was  a  taking  and  carrying  away  within  the  meaning  of  the  act. 
With  inanimate  objects  of  larceny,  force  may  be  necessary,  and 
must  be  used  ;  but  is  there  any  thing  in  reason  or  common  sense, 
which  requires  it  as  to  those  subjects  of  larceny  which  possess  vo 
lition  and  locomotion  ?  Is  not  the  idea  as  to  both,  the  deprivation 
which  the  owner  of  the  property  sustains  1  Suppose  a  horse  or  a 
dog  to  be  tolled  out  of  the  possession  of  the  owner  by  corn,  is  not 
this  a  taking  and  carrying  away  as  the  shouldering  a  bale  of  goods 
would  be  ?  I  confess  I  can  see  no  substantial  legal  difference. 

2. 

THE  STATE    v.    COVINGTON.     Jan.  T.  1832.     2  Bailey's 
Rep.  569. 

The  prisoner  was  indicted  under  the  statute  of  1754,  which  de-  The  con- 
clares,  that  any  one  "who  shall  inveigle,  steal,  or  carry  away,  any  ow'ner  of  a 


negro  or  other  slave  or  slaves,  &c.,  so  as  the  owner  or  employer  of 

such  slave  or  slaves  shall  be  deprived  of  the  use  and  benefit  of  such  acceding  to 

slave,"  &c.     The   owner  knew  of  the  contemplated  felony,  and 

consented  that  the  negro  should  meet  the  prisoner  for  the  purpose 

of  arranging  with  him  the  plan  of  elopement.     And  the  question  detectins 

the  oflend- 

was,  whether  the  owner  was  "deprived  of  the  use  and  benefit  of  er   in  the 
the  slave"  act  of  steal 

ing  the 


The  court,  Johnson,   J.    after  referring   to   Macdaniel's  case, 
2  East's  P.  C.,  665.  ;  Norden's  case,  2  East's  P.  C.,    66G.  ;  and  assent  as 
Eggington's  case,  2  East's  P.  C.,  666.;  which  last  case  was  held 
to  be  a  case  in  point.     There  the  master  of  a  manufactory  had 
agreed   with  his  servant  that  the  door  should  be  left  open  for  the  Penalty  of 
entrance  of  the  robber;  and  when  he  entered,  and  took  the  marked  ing. 
guineas,  the  servant  was  with  him,  and  the  court  held  that  it  was  a 
larceny.     The  principle  will  apply  to  this  case.     Every  act  of  the 
prisoner  proceeded  from  his  own  mere  motion,  without  any  agency 
on  the  part  of  the  owner  of  the  slave.   His  not  preventing  the  thing 
when  he  knew  it  beforehand,   is  not  evidence  of  the  assent   of  his 
will,  but  is  only  an  apparent  assent.     The  act  was,  therefore,  invi* 
to  domino,  and  constituted  felony. 


436  SLAVERY. 

3. 

STATE  v.  COVINGTON.  January  T.  1832.    2  Bailey's  Rep.  569.; 
S.  P.  STATE  v.  MILES,  2  Nott  &  M'Cord's  Rep.  4. 

Taking  a         The  prisoner  was  indicted  for  inveigling  and  stealing  a  slave  un- 
der  the  act  of  1754.     It  appeared  by  the  testimony,  that  the   pri- 


tent:  to  in"  soner  anc*  tne  neoro  set  out  an(^  went  the  distance  of  thirty  yards 
veigle  or      in  the  prosecution  of  the  intent  of  the  prisoner  to  inveigle  the  ne- 

steal  him,  _ 

satisfies  the  gro  from  the  service  and  employment  of  his  master,  but  were  pre- 

felonydi?e  vented  from    proceeding    farther   by  persons  who  had    placed 

complete,    themselves  in  ambush  to  intercept  them.     The   act  under  which 

the   prisoner  was  indicted  declares,   that  any  one  "  who  shall  in 

veigle,  steal,  or  carry  away,  any  negro,  or  other  slave  or  slaves, 

&c.;  so  as  the  owner  or  employer  of  such  slave  or  slaves  shall  be 

deprived  of  the  use  and  benefit  of  such  slave,"  &c. 

The  court,  Martin  J.,  held  the  crime  was  complete,  and  that  the 
common  law  definition  applied  to  prosecutions  under  the  statute 
as  to  the  asportavit. 

4. 
STATE  v.  WHYTE  &  SADLER.     Nov.  T.  1819.     2  Nott  & 

M'Cord's  Rep.  174. 
The  acts         The  court,    Cohock,   J.    The  act   of  1754,    making  it  felony 

making  it 

felony  to      without  benefit  of  clergy,    "  to  inveigle,   steal,  or  carry  away  any 


negro  or  slave,"  applies  to  negroes  as  well  as  white  persons.    His 

applies   to  honor  observed,  that  the  policy  of  the  country,  as  well  as  the  ex- 
negroes. 

press  law,  makes  it  necessary  that  those   offences  which  are  de 

clared  to  be  felonies  when  committed  by  white  men,  should  also  be 
felonies  when  committed  by  negroes.  The  former  acts,  which 
relate  to  negroes  only,  made  it  felony  to  steal  or  entice  a  negro  so 
as  to  carry  him  out  of  the  state.  This  act  makes  it  so  to  steal  or 
inveigle  them,  or  aid  others  in  doing  so,  although  they  be  not  car 
ried  out  of  the  state. 

5. 

THE  STATE  OF  MISSISSIPPI  v.  M'GRAW.  June  T.  1825.  Walker's 

Rep.  208. 

ment'for1"  Per  Cur.  Turner.  J.  It  appears  by  the  record,  that  at  the 
negro  m*n  October  term,  1823,  of  Pike  circuit  court,  the  defendant  was  in- 
not  called  a  dieted  for  stealing  a  negro  man,  on  which  charge  he  was  tried  on 
sufficient1"  the  plea  of  not  guilty,  and  acquitted.  At  the  same  term  he  was 
also  indicted  for  stealing  one  negro  man  slave,  named  Emanuel 


OF  STEALING  AND  KIDNAPPING  SLAVES.  437 

£c.,  of  the  goods  and  chattels  of  one  William  B.  Heath,  &c.     On  trial  and 
this  arraignment,  he  pleaded  a  former  acquittal  for  the  same  offence, 
to  which  the  state  replied  nul  tiel  record  of  a  former  acquittal  ;  and 
the  court  doubting  the  law,  referred  the   cause   to  this  court,  on  a  negro 
the  issue  of  nul  tiel  record.     It  appears  by*"  the   record,  that  the    {JJ^to" 
district  attorney  appeared  to  enter  a  nul  pros,  on  the  first  indict-  s^^ent 
ment,  and  informed  the  prisoner  and  his  counsel,  that  he  consider-  tion  for 
ed  that  indictment  invalid,  and  had  preferred   another  ;   and  sub-  negro  man 
mitted  to  them,  whether  they  would  risk  a  trial  on  the  first  indict-  slave< 
ment  ;  whereupon  the  prisoner  and  his  counsel  would  not  move  to 
quash  the  first  indictment,  but  claimed  a  trial  by  jury  ;  a  trial  was 
had,  and  verdict  for  the  defendant.     I  am  of  opinion  that  the  first 
indictment  was  insufficient  to  warrant  a  conviction,  anfl  on  which 
no  sentence   could  have   been   passed   against   the   prisoner.     It 
charges  the  prisoner  with  having  stolen  a  negro  man,   no  where 
called  a  slave  in  the  whole  indictment  ;  and  it  is  obvious  that  the 
attorney  of  the  state  aimed  at  an  indictment,  under  the  statute,  for 
stealing  a  slave.  The  authorities  summed  up  in  in  the  first  volume 
of  Chitty's  Criminal  Law,  p.  453,   &c.,  show  clearly,  that  a  con 
viction  or  acquittal  on  an  invalid  indictment  cannot  be  pleaded  in 
bar  of  a  second,  or  subsequent  prosecution.     Wherefore,  let  judg 
ment  be  entered  for  the  state,  on  the  issue  joined  on  the  plea  of 
autor  fois  acquit  ;  and  it  is  ordered,  that  the  cause  be  remanded  for 
further  proceedings  in  the  circuit  court  of  said  county  of  Pike. 

6. 
COMMONWEALTH  v.  PEAS.     July  T.  1834.     4  Leigh's  Rep.  692. 

Indictment  under  the  statute,  1  Rev.  Code,  ch.  3.   §  30.,  which  An  indict- 
declares,  that  "whomsoever  shall  carry,  or  cause  to   b&  carried, 


any  slave  or  slaves  out  of  this  commonwealth,  shall  carry  or  cause  for  feloni 

ously  ta- 
to  be  carried  any  slave  or  slaves  out  of  any  county  or  corporation  king  and 


within  this  commonwealth,   in  any  other  county  or  corporation 
within  the  same,  without  the  consent  of  the   owner  or  owners  of  a.yer  ^ 

the    slave 

such  slave  or  slaves,  or  of  the  guardian  of  such  owner  or  owners,  was  taken 
if  she  or  they  be  a  minor  or  minors,  and  with  intention  to  deprive  ygd  with-  ~ 
such  owner  or  owners  of  such  slave  or  slaves,  shall  be  adjudged  ®0^s^  of 

guilty  of  felony."  the  owner. 

The  indictment  omitted  to  aver  the  carrying  out  of  the  county 
was  without  the  consent  of  the  owner.  The  jury  found  the 
prisoner  guilty.  Motion  in  arrest  of  judgment. 


438  SLAVERY. 

Per  Cur.  Lomax,  J.  The  omission  of  the  averment,  that  it  was 
without  the  consent  of  the  owner  that  the  slave  was  removed,  is  a  fa 
tal  defect,  and  is  not  cured  by  verdict.  Judgment  arrested. 


(XXIII.)     PENALTIES  FOR  TRADING  WITH,  &c. 

1. 

DELERY  v.  MORNET.    Feb.  T.  1822.     11   Martin's   Louisiana 

Rep.  4. 

It  is  no  de-       Porter,  J.     This  action  was  instituted  in  virtue  of  the  24th  sec- 

su'itonirithe  tion  of  the  Black  Code>  (l  Marlin's  DiS-  622.,)  which  enacts,  that 

part  of  the  "  intoxicating  liquors  shall  not  be  sold  to  slaves  without  a  written 

Code,  permission  from  their  master  ;  and  declares,  that  any  person  vio- 

bidsCthef°r  Iatin°   that  Provision  shall  incur  a  penalty;  and,  moreover,  be 

sale  of  spi-  answerable  to  the  owner  for  all  damages  which  the  master  may 

quors  to  suffer  in  consequence  thereof."     The  petition  alleges,  that  the  de- 

thTthelle-  fendant  did,  in  violation  of  this  law,  sell  to  the  slave,  Jasmin,  spi- 

fendant  rituous  liquors  ;  that  by  the  cause  of  them  he  became  intoxicated : 

did  not 

know  the  and  that  in  consequence  of  said  intoxication,  he  was  drowned.  The 
be?*dave.  defendant  denied  that  he  was  liable,  by  reasons  of  the  allegations 
in  the  petition,  arid  concluded  his  answer  by  putting  the  plaintiff  on 
the  strict  proof  of  every  thing  necessary  to  support  his  action. 
There  was  judgment  against  him,  and  he  appealed.  The  defence 
has  been  presented  to  us  in  argument,  under  the  following  divi 
sions — 

1.  That  it  is  not  proved  that  the  illegal  act  complained  of  was 
done,  knowingly,  by  the  defendant. 

2.  That  the  evidence  does  not  prove  that  the  slave  became  in 
toxicated  at  the  house  of  the  defendant,  and  in  consequence  of  the 
spirituous  liquors  he  drank  there. 

That  the  damages  suffered  by  the  master  must  be  the  direct  and 
immediate  consequence  of  the  intoxication  of  the  slave,  and  that, 
in  the  present  instance,  the  evidence  does  not  establish  that  fact. 

1.  The  evidence  proves  clearly,  that  the  defendant  sold  liquor 
to  the  slave  of  the  plaintiff,  and  this  is  sufficient  to  throw  the 
burthen  of  proof  on  the  defendant,  that  the  act  was  done  inno 
cently.  Were  we  to  require  that  the  master,  in  an  action  of  this 


PENALTIES  FOR  TRADING  WITH,  &c,  439 

kind,  should  prove  that  the  seller  of  liquor  knew  the  individual  to 
whom  he  sold  it  to  was  a  slave,  we  would  require  evidence  that, 
from  the  nature  of  the  transaction  it  is  impossible,  in  many  cases, 
he  could  give,  and  defeat  entirely  the  object  of  the  statute.  The 
general  rule  is,  that  the  burthen  of  proof  lies  on  the  person  who 
has  to  support  his  case  by  proof  of  a  fact,  of  which  he  is  supposed 
to  be  cognisant.  Phillip's  Ev.  (edit.  1820,)  150. 

2.  The  principal  witness  swears,  that  he  embarked  atthe  market 
house  in  a  pirogue,  with  the  slave  Jasmin  and  some  other  negroes; 
that  they  (the  negroes)  were  sober  when  they  set  oft*;  that  when 
they  came  opposite  the  defendant's  residence  they  put  to  shore, 
went  into  his  house,  purchased  liquor,  drank  it,  remained  there  a 
quarter  of  an  hour,  and  that  they  began  to  quarrel  and  fight  as 
soon  as  they  re-embarked  ;  that  Jasmin  was  drunk,  and  that  a 
short  time  after,  he  was  drowned.  This  proof  is  satisfactory  to 
rny  mind,  as  it  appears  to  have  been  to  that  of  the  judge  who  tried 
the  cause,  that  the  intoxication  of  the  slave  proceeded  from  the 
liquors  procured  and  drank  at  the  defendant's  shop.  The  third 
and  last  point  is  the  only  one  which  has  presented  any  difficulty. 
The  defendant  insists,  that  the  death  of  the  slave  was  not  the  di 
rect  consequence  of  the  intoxication  ;  but  resulted  from  the  act  of 
a  third  party  threatening  to  flog  him.  On  this  head  the  evidence 
is  as  follows  :  J.  Soule,  the  witness  who  embarked  in  the  pirogue 
with  the  slave  Jasmin,  swears,  that  after  they  left  the  shop  of  the 
defendant,  and  embarked  on  board  the  pirogue,  the  negroes  began 
to  quarrel,  and  finally  to  fight  ;  that  one  of  them  fell  twice  into 
the  river  ;  that  he  (the  defendant)  finding  his  situation  a  danger 
ous  one,  called  for  help  from  a  boat  he  saw  at  some  distance,  and 
that  a  Mr.  Lartigue  came  to  his  assistance,  and  brought  the  pi 
rogue  to  land.  When  they  got  on  shore,  Mr.  Lartigue  observed, 
that  he  would  give  them  a  flogging,  and  then  they  would  behave 
themselves.  On  hearing  this,  Jasmin  jumped  into  the  river,  the 
witness  jumped  after  him,  but  was  unable  to  save  his  life.  Another 
of  the  negroes,  who  was  also  drunk,  immediately  endeavored  to 
drown  himself,  but  was  prevented.  Lartigue  confirms  this  testi 
mony,  except  that  his  declaration  to  the  negroes  was,  that  if  they 
did  not  behave  themselves  he  would  correct  them. 

This  evidence  shows,  in  a  most  striking  point  of  view,  the  con 
sequences  that  result  from  violating  a,  wise  and  salutary  law,  which 
is  founded  alike  on  a  regard  for  the  interests  of  the  master  and 
slave.  And  the  judgment  of  this  court  can  only  enable  the  defendant 


440  SLAVERY. 

to  discharge  one  of  the  responsibilities  which  he  has  incurred  by  this 
transgression.  The  defence  which  he  sets  up  cannot,  in  my  opi 
nion,  be  sustained.  The  bad  conduct  of  the  negroes  in  the  boat 
was  the  result  of  his  act;  the  necessity  of  approaching  Lartigue 
was  caused  by  it ;  and  the  justifiable  threat  of  correction  arose 
from  the  intoxication  of  the  slaves,  which  we  have  already  seen, 
proceeded  from  a  fault  of  the  defendant.  The  case  cited  from 
Taunton's  Reports  is  not  law  here  ;  and  the  reasons  given  by  the 
judges  who  decided  it  are  not  satisfactory.  It  appears  very  strange 
that  a  man  should  be  excused  from  the  consequences  of  illegally 
frightening  the  horse  of  a  traveller,  because  the  driver  was  not  skil 
ful,  when  it  is  clear  there  would  not  have  existed  a  necessity  for  ex 
ercising  skill  had  it  not  been  for  the  act  of  the  defendant,  and  but 
for  that  act,  no  damage  would  have  been  sustained.  In  the  well- 
known  case  of  the  throwing  of  a  squib,  which  was  picked  up  and 
thrown  by  two  other  persons  before  it  committed  the  injury  on  the 
plaintiff,  it  was  held  that  the  first  thrower  was  responsible  ;  that  the 
new  direction  and  force  flowed  out  of  the  first  force,  and  was  not  a 
new  trespass.  So,  here  the  act  of  Lartigue  directly  flowed  from 
the  original  fault  of  the  defendant ;  was  occasioned  by  it,  and  must 
be  considered  as  making  a  part  of  it.  I  think  the  plaintiff  has 
made  out  his  case,  under  the  law  cited  at  the  commencement  of 
this  opinion,  and  that  the  judgment  of  the  parish  court  should  be 
affirmed,  with  costs. 

Martin,  J.  Nothing  can  be  clearer  than  the  position,  that  a  per 
son  who,  in  this  state,  deals  with  a  black  man,  exposes  himself,  in 
case  of  his  being  a  slave,  to  all  the  consequences  which  follow  the 
dealing  with  a  slave  ;  the  presumption  being,  that  a  black  man  is 
a  slave  ;  as  by  far  the  greatest  proportion  of  persons  of  that  color 
are,  in  this  state,  held  in  slavery.  There  would  be  no  possibility  of 
punishing  illegal  acts  relating  to  that  species  of  property,  if  the 
knowledge  of  the  actual  slavery  of  the  negro  was  essentially  to  be 
proven  in  the  trespass. 

The  liquor  which  intoxicated  the  slave,  having  been  furnished 
him  in  the  defendant's  shop,  he  must  be  amenable  for  the  conse 
quences.  It  is  clear,  that  the  spirituous  liquor  which  the  plaintiff's 
slave  obtained  there  was  the  cause  of  his  intoxication  ;  as  it  ap 
pears  in  evidence  that  he  proceeded  from  the  shop  to  the  boat,  and 
that  a  short  time  after  he  fell  in  the  water,  and  was  drowned.  It 
appears  to  me,  that  the  drowning  was  the  immediate  consequence 
of  the  supply  of  spirits  procured  in  the  defendant's  shop  ;  he  must, 


PENALTIES  FOR  TRADING  WITH,  &c.  441 

of  course,  abide  the  consequence*  I  concur  in  Judge  Porter's 
opinion. 

Mathews,  J.  I  concur  with  my  colleagues.     Judgment  affirmed. 

2. 

STATE  v.  ANONE.     May  T.  1819.  2  Nott  &  M'Cord's  Rep.  27. 

Indictment  for   trading  with  a  slave  without  a  ticket.     It  ap-  Butt-ap 
peared  the  defendant  left  one  of  his  slaves  in  his  store  to  buy  and  jy^tra&ug 
sell  for  him  in  his  absence.      The  overseer  of  a  plantation  sus-  ™lvhe  ^m 
pectins:  the  defendant's  slave  of  buyinar  of  slaves  without  tickets,  not  affect 

the  validity 

gave  corn  to  one  of  the  slaves,  who  sold  to  the  defendant's  slave  Of  the  con- 
for  his  master  in  the  presence  of  the  overseer.     It  was  objected,  v 
the  defendant  could  not  be  convicted,  in  as  much  as  the  corn  was 
given  by  the  overseer  to  the  negro  for  the  purpose  of  detecting  the 
defendant. 

The  court,  Richardson,  J.,  held,  that  where  the  goods  were  given 
by  the  master  or  owner  on  purpose  to  entrap  the  person  who 
might  trade  with  the  slave,  and  where  the  master  or  owner  stood 
and  saw  the  act  of  trading  for  the  purpose  of  detection,  it  does  le 
galize  such ;  nor  is  it  a  defence  which  will  avail  the  defendant.  The 
same  principle  was  laid  down  in  the  State  v.  Stroud,  in  a  note  to 
the  end  of  the  case  in  the  text, 

3. 

THE  STATE  v.  PEMBERTON  and  SMITH.      Dec,    T.   1829. 
2  Devereux's  North  Carolina  Rep.  281. 

The  defendants  were  indicted  as  follows  :    "  The  jurors,  &c.  It  ig  not  ari 
present,  that  S.  P.  and  J.  A.  S.  late  of,  on,  &c.,  at,  &c.,  unlaw-  offence 
fully  did  play  at  cards  with  certain  slaves,  to  wit,  with,  &c.,  to  the  common 
evil  example  of  all  others  in  like  case  offending,  and  against,  &c."  ^u^  ^J 

After  verdict  for  the  state,  his  honor  Judge  Strange  arrested  the  gamble 

.     .  _        .    .  ,          .        _  withslaves 

judgment,  being  of  opinion,  that  the  fact  charged  as  an  offence 
was  one  which  never  could  have  existed  in  England,  and  there 
fore  could  not  be  deemed  an  offence  at  common  law,  as  no  law 
could  be  supposed  to  exist  against  that  which  could  not  be  done. 
And  as  there  was  no  statute  prohibiting  it ;  or,  if  there  was,  as  the 
indictment  did  not  conclude  contra  formam,  it  could  not  be  taken 
as  an  offence  against  the  statute  law.  From  this  judgment  the  so 
licitor  for  the  state  appealed. 

Per  Cur.    For  the  reasons  given  by  the  judge  below,  the  judg 
ment  must  be  affirmed. 
56 


442  SLAVERY. 


(XXIV.)  HARBORING  SLAVES.* 

1. 

SCIDMORE  v.  SMITH.     Aug.  T.  1816.     13  Johns.  Rep.  322. 

An  action  Smith,  the  defendant  in  error,  brought  an  action  of  trespass  in 
case  lies  tne  court  below,  against  the  plaintiff  in  error,  to  recover  damages 
for  seducm£  and  harboring  his  man  servant.  It  was  objected  that 
the  action  should  have  been  debt,  under  the  1 5th  section  of  the 
"act  concerning  slaves  and  servants."  (2  N.  R.  L.  206.,)  but  the 
exception  was  overruled,  and  judgment  was  given  for  the  defendant 
in  error. 

Per  Cur.  The  statute  penalty  for  harboring  slaves  or  servants 
is  cumulative,  and  does  not  destroy  the  common  law  remedy. 
Judgment  affirmed. 


*By  Aiken's  Ala.  Dig.  p.  109,  any  person  harboring  or  concealing  any  negro  or  negroes 
belonging  to  any  other  person,  or  suffering  the  same  to  be  done  (with  his  consent  and 
knowledge,)  shall  be  punished  in  a  sum  not  exceeding  $700,  and  shall  be  imprisoned 
not  less  than  one,  nor  exceeding  six  calendar  months;  and  by  Prince's  Dig.  Laws  of 
Geo.  p.  375,  any  person  guilty  of  harboring,  &c.  to  be  sentenced  to  the  penitentiary, 
at  hard  labor,  for  a  term  not  exceeding  2  years,  provided,  an  apparent  well  founded 
claim  to  said  slave  is  not  shown  on  trial;  damages  may  also  be  recovered  in  a  civil  suit 
for  loss  of  labor,  &c.  And  by  the  Rev.  Code  of  Miss.  p.  585,  any  white  person,  free 
negro,  or  mulatto,  harboring  or  entertaining  a  slave  without  the  consent  of  his  or  her 
owner  or  overseer,  shall  forfeit  to  the  informer,  for  every  such  offence,  $10 ;  and  if  a 
free  negro,  or  mulatto,  shall,  in  addition,  receive  any  number  of  lashes,  not  exceeding 
thirty.  Ib.  p.  318,  any  licensed  innkeeper  harboring  a  slave  knowing  him  to  be  such, 
without  a  written  permission  from  the  master  or  mistress,  shall  forfeit  and  pay  for 
every  such  offence,  a  sum  not  less  than  $10,  nor  more  than  $50 ;  and  in  p.  584,  a 
slave  harboring,  &c.  another  slave,  shall  be  punished  by  stripes  not  exceeding  thirty- 
nine.  By  the  Rev.  Code  of  Miss.  p.  380,  any  white  person,  negro,  or  mulatto,  har 
boring  a  slave  without  the  consent  of  the  master,  shall  be  fined  in  a  sum  not  exceeding 
$20,  and  shall  be  liable  in  damages  to  the  owner ;  and  any  slave  committing  a  like  of 
fence,  to  receive  not  exceeding  thirty-nine  lashes.  By  the  Rev.  Code  of  Virginia  p. 
439,  any  free  person  guilty  of,  &c.  shall  be  considered  guilty  of  a  misdemeanor,  and 
punishable  as  in  other  cases  of  misdemeanors,  and  shall  also  be  liable  for  damages  to 
the  party  injured :  if  a  slave,  to  receive  not  exceeding  thirty -nine  lashes.  By  the  Rev. 
Code  of  Tenu.  vol.  1.  p.  329,  any  white  person,  free  negro,  or  mulatto,  harboring  or 
enticing  a  slave,  without  the  knowledge  and  consent  of  the  master,  shall  forfeit,  &c. 
a  sum  not  exceeding  $20,  nor  less  than  $10 ;  Ib.  p.  320,  for  harboring,  &c.  a  slave  on 
any  pretence  whatever,  shall  forfeit  and  pay  to  the  owner,  for  every  such  offence,  $50, 
and  be  also  liable  in  an  action  for  damages  to  the  owner  ;  and  if  the  offence  is  com 
mitted  with  a  view  to  the  escape  of  the  slave  from  the  state,  shall  pay  to  the  master  or 
mistress,  for  every  such  negro  enticed  away,  $62  and  50  cents,  to  be  levied  on  his 
property ;  but  if  he  be  insolvent,  shall  be  compelled  to  serve  the  owner  5  years.  By 


HARBORING  SLAVES.  448 

2. 

DARK  v.  MARSH,     July  T.  1815.     2  North  Carolina  Law  Re 
pository  249. 

This  was  an  action  of  debt  to  recover  the  penalty  under  the  4th  ^mSn? 
section  of  the  act  of  1791,  against  harboring  slaves.     The  declara    taining  a 

.  runaway 

tion  contained  three  counts  :     1.  For  enticing  and  persuading  the  slave  with- 
slave  to  leave  the  plaintiff's  service.    2.  For  harboring  and  main-  leaning  of 
taining  the  slave,  knowing  her  to  be  a  runaway.     The  jury  found  ^^  of 
a  verdict  for  the  plaintiff,  subject  to  the  opinion  of  the  court,  on  the  act  of 
the  following  case.     The  plaintiff  proved  a  title  to  the  two  slaves, 
mother  and  child,  under  a  bill  of  sale,  and  possession  of  them  from 
February  1807,  until  the  September  following,  when  she  absented  fraudulent 
herself  with  her  child,  in  the  night  time,  taking  with  her  all  her  and  main 
apparel,  and  was  the  next  morning  in  possession  of  the  defendant,  fc 
who  at  that  time,  gave  notice  to  the  plaintiff  of  the  fact,  and  said 
he  should  retain  them  until  recovered  by  law;  as  he  claimed  them 
as  his  father's  property.     The  defendant  has  had  them  in  posses 
sion  till  1813,  harboring  and  maintaining  them,  but  in  an  open  and 
avowed  manner,  the  woman  being  the  wife  of  one  of  his  negro 
men.     The  plaintiff  sued  out  a  writ  of  detinue  for  the  slaves  in 
1807,  and  in  September  1813,  recovered  them,  and  damages  for 
the  detention.     The   writ  in  the  present  action  was   sued   out 
in  1809. 

Per  Cur.     Ssawell,  J.     The  jury  have  found  for  the  defendant 


the  act  of  1836,  any  person  or  persons,  harboring,  &c.  any  runaway  slave,  knowing 
him  to  be  such,  shall,  on  conviction,  be  punished  by  imprisonment  in  the  penitentiary, 
at  hard  labor,  for  a  period  not  exceeding  10,  nor  less  than  3  years.  In  Kentucky,  by 
the  act  of  1830,  p.  173,  any  person  concealing  or  harboring  a  runaway  slave,  knowing 
him  to  be  such,  in  addition  to  compensation  to  the  owner,  shall,  on  conviction,  pay  a 
fine  not  exceeding  $500,  nor  less  than  $50,  and  also  give  security  for  good  behaviour 
during  his  stay  in  the  state.  By  Lislet's  Louisiana  Dig.  vol.  1,  p.  121.  any  person 
harboring,  concealing,  or  hiring  any  runaway  slave,  shall  be  fined  in  a  sum  not  ex* 
ceeding  $300,  nor  less  than  $100 ;  Ib.  p.  398,  any  person  harboring,  &c.  knowing 
them  to  be  such,  &c.  shall,  on  conviction,  be  fined  in  a  sum  not  exceeding  $1000,  nor 
less  than  $200,  and  be  imprisoned  not  exceeding  2  years,  nor  less  than  6  months. 
By  2  Brevard's  Dig  Laws  of  South  Carolina,  p.  237.,  any  free  negro,  mulatto,  mestizo, 
or  slave,  guilty  of  harboring,  &c.  a  runaway  slave  or  slaves,  charged  or  accused  of 
any  criminal  matter,  if  a  slave,  shall  receive  such  corporal  punishment,  not  extending 
to  life  and  limb,  as  the  court  shall  think  fit ;  and  if  a  free  negro,  &c.  shall  forfeit  to  the 
use  of  the  owner,  £10  for  the  first  day,  so  harbored  or  concealed,  and  £1  for  every 
day  after ;  and  if  unable  to  pay  said  forfeiture,  shall  be  publicly  sold  to  pay  the  same. 
Ib.  p.  257.  harboring  any  negro  illegally  brought  into  the  state,  shall  forfeit  and  pay 
$100,  for  every  such  offence. 


444  SLAVERY. 

on  all  the  counts  in  the  declaration,  except  the  one  for  harboring 
and  maintaining  the  slave  as  a  runaway.  Upon  that  count  we  think 
there  can  be  no  doubt  as  to  what  verdict  they  should  have  found, 
under  the  facts  which  form  the  case.  The  act  of  assembly  gives 
a  penalty,  where  any  person  shall  "  harbor  or  maintain  under  any 
pretence  whatever,  any  runaway  servant  or  slave." 

Now,  it  has  been  contended  by  the  plaintiff's  counsel,  that  if  the 
slave  was  a  runaway,  and  was  in  the  possession  of  defendant,  and 
retained  by  him,  that  it  was  then  such  a  case  as  was  provided  for 
by  the  act,  which  from  the  words,  "  under  any  pretence,"  would 
reach  every  possible  case.  That  the  legislature  was  competent 
to  give  a  penalty  in  such  a  case,  we  do  not  deny,  but  feel  warranted 
in  saying  they  have  not  said  so,  or  intended  it,  in  this  case. 

The  act  has  in  express  words  given  a  penalty  for  harboring  ;-^— 
harboring  is  a  term  well  understood  in  our  law,  and  means  &  frau 
dulent  concealment ;  and  the  legislature  not  having  said  in  what  a. 
maintaining  under  any  pretence  consists,  we  are  left  to  find  it  out  by 
construction.  To  us  it  seems  clear,  that  it  is  a  safe  rule  in  con 
struction,  where  acts  of  a  known  and  definite  meaning  are  de 
scribed  as  constituting  an  offence,  and  then  other  words  of  a  ge 
neral  nature  are  used  as  synonimous  with  the  former,  and 
apparently  with  a  view  of  giving  the  act  a  liberal  construction  in 
suppression  of  the  mischief,  that  these  general  expressions  should 
not  render  penal  by  construction,  any  act  which  does  not  partake 
of  the  qualities  of  the  act  specially  set  forth.  Such  a  construction 
would  lead  us  to  say,  that  the  maintaining,  intended  by  the  legisla 
ture,  was  secret  and  fraudulent ;  this  being  negatived  by  the  state 
ment  of  the  case,  we  think  the  jury  should  have  found  for  the  de 
fendant  on  this  count,  and  are  all  of  opinion  there  should  be  judg- 
nient  for  defendant. 

3. 

GORDON,  by  his  next  friend  v.  FARQUHAR.  June  T.  1823.  Peck's 
Tennessee  Rep.  155. 

Harboring  Per  Cur.  Haywood,  J.  This  was  a  warrant  in  debt,  before  a 
donTunder  justice  of  the  peace,  for  fifty  dollars,  founded  on  the  act  of  1799, 
property^  cb<  28j  sec>  2>  for  enticing  and  persuading  a  certain  slave  named 
and  not  Violet,  from  the  service  of  the  plaintiff,  her  master.  The  cause 
to  subtract  went  into  the  circuit  court  by  appeal,  where  there  was  a  trial  and 
fro'nfthe  verclict  for  the  defendant.  The  clause  in  the  act  on  which  the 


HARBORING  SLAVES.  445 

warrant  was  founded,  declares  "  that  if  any  person  shall  hereafter  owner, 
entice  or  persuade  any  servant  or  slave  to  absent  him  or  herself  in  the  act 
from  his  or  her  owner's  service,  or  shall  harbor  or  maintain  under 
any  pretence  whatever." 

On  the  trial  it  appeared,  that  the  defendant  met  with  the  slave, 
who  was  absent  under  a  pass  or  permit  from  the  plaintiff,  who 
claimed  to  be  the  owner  under  a  purchase  at  sheriff's  sale,  and 
claiming  an  interest  in  the  slave  under  a  deed  of  trust,  which  deed 
was  held  by  Tubb  as  trustee  ;  he  directed  the  slave  to  go  to  Tubb, 
who  he  said  had  a  claim  to  her, under  which  direction  the  slave  went, 
The  deed  of  trust  was  shown  in  defence,  but  it  was  insisted  it 
was  fraudulent,  and  should  be  viewed  as  a  nullity.  No  part  of  the 
charge  of  the  court  is  called  in  question,  so  far  as  it  goes,  but  it  is 
insisted  that  the  judge  should  have  charged  the  jury,  that  ifjhe  de-> 
fendant  claimed  the  girl  by  a  deed  fraudulent  and  void  in  law,  he 
could  not,  by  virtue  thereof,  justify  persuading  and  enticing  her 
from  her  owner's  service.  But  the  court,  though  requested,  re* 
fused  so  to  charge,  having  charged  "  that  though  the  defendant 
might  have  persuaded  her  to  put  herself  under  the  protection  of 
Tubb  ;  yet,  if  he  did  it  under  a  belief  that  he  had  a  good  equita 
ble  or  a  legal  title  in  Tubb,  then  he  is  not  embraced  in  the  act  of 
assembly." 

The  words,  "  under  any  pretence  whatever,"  in  the  act  of  as 
sembly,  are  referable  to  the  harboring,  not  to  the  words  "  entice 
from  the  service  of  the  owners ;"  this  latter  sentence  means  an  ac 
knowledged  owner,  not  one  whose  claim  is  opposed  by  that  of  the 
defendant,  by  virtue  of  another  claim  of  his  own.  If  the  prior 
possession  is  to  be  regarded,  and  he  who  is  the  owner  with  open 
possession  is  not  to  be  disturbed,  then  a  new  possession  taken  by 
force  and  avowedly  as  a  recaption,  is  not  the  object  of  the  penal 
ty  awarded  by  this  law,  for  that  is  but  a  restitution  to  the  state, 
from  which  it  ought  not  to  have  been  taken,  and  one  which  is  ef* 
fected  without  force,  and  not  without  a  justificatory  motive.  The 
penalty  is  to  be  recovered  before  a  justice  of  the  peace,  and  cer^ 
tainly  it  cannot  be  pretended  that  the  justice  must  decide  on  the 
merits  of  the  respective  claims,  of  course  he  cannot  determine 
whether  one  of  the  claims  be  fraudulent  or  not.  He  can  only  en 
quire  into  the  motive  of  the  person  charged,  and  whether  it  be 
such  as  the  act  condemns,  that  is,  a  desire  to  meddle  with  the  pro 
perty  of  another,  to  which  the  defendant  had  himself  no  colera- 


446  SLAVERY, 

ble  claim,  and  to  subtract  from  the  owner,  profits  which  the  offen 
der  has  no  reason  or  pretence  for  claiming. 

4. 
ROQUET  v.  RICHARDSON.  March  T.  1832.  3  Louisiana  Rep.  452. 

A  person  Damages  were  claimed  from  the  defendant,  on  the  ground  of 
Tos^sion  navmg  concealed  and  employed  a  runaway  slave  belonging  to  the 
of.a  slave  plaintiff.  The  general  issue  was  pleaded,  and  it  appeared  from  the 
right  or  ti-  testimony,  that  a  female  slave  aged  about  twelve  years,  was  brought 
his  motives  *°  the  defendant's  house  by  a  carman,  to  whom  she  had  stated  she 
be  not  was  free.  ghe  remained  with  the  defendant  for  nearly  a  year,  dur- 

criminal,  is 

liable  for  ing  which  time  every  publicity  was  given  to  the  fact  of  her  living 
there,  and  attempts  made  to  discover  whether  she  was  a  slave,  and 
to  w*lom  she  belonged.  There  was  no  paper  published  in  the 

cover  the  parish  where  the  defendant  resided  ;  nor  did  it  contain  a  jail ; — it 
was  further  shown  that  the  defendant  was  a  justice  of  the  peace. 
The  plaintiff  proved  property  in  the  slave  ;  that  he  had  advertised 
her  in  the  papers  of  New  Orleans  as  a  runaway,  and  expended 
one  hundred  dollars  in  endeavoring  to  recover  her.  There  was 
judgment  for  the  defendant  in  the  court  below,  and  the  plaintiff 
appealed. 

Per  Cur.  Mathews,  J.  In  this  case,  damages  are  claimed  from 
the  defendant,  on  account  of  the  concealment  and  detention  of  a 
female  slave,  the  property  of  the  plaintiff.  The  court  below  ren 
dered  judgment  in  favor  of  the  former,  from  which  the  latter  ap 
pealed.  The  amount  claimed  is  in  conformity  with  the  acts  of  the 
legislature,  (part  of  the  Black  Code,)  passed  in  1807  and  1809, 
and  which  relate  to  the  penalty  and  punishment  for  harboring  and 
concealing  runaway  slaves.  These  acts  seem  intended  to  fix  the 
penalties  to  which  offenders  against  their  provisions  may  be  legally 
subjected  on  conviction  ;  they  are  pecuniary,  but  may  be  changed 
into  imprisonment,  if  the  persons  convicted  has  not  the  means  ne 
cessary  to  pay  to  owners  of  slaves  the  compensation  accorded. 
See,  Moreau's  Dig.  p.  119-20.  In  addition  to  the  compensation 
allowed  to  owners,  by  the  first  article,  a  fine  is  imposed  for  the 
benefit  of  the  parish,  wherein  the  offender  may  be  convicted,  by 
the  second.  Same  book,  p.  121.  These  laws  are  evidently  penal, 
and  have  relation  to  public  offences.  Whether  the  owner  of  a 
slave,  which  may  have  been  concealed  or  hired  without  leave,  can 
pursue  the  person  offending,  in  a  civil  action,  and  on  proof  of  the 


HARBORING  SLAVES.  447 

offence  recover  the  penalty  prescribed  by  law  ?  is  a  question  which 
the  present  case  (according  to  the  testimony,)  does  not  require  to 
be  settled,  as  we  are  of  opinion  with  the  court  below  that  the  proof 
does  not  establish  any  criminal  concealment  or  illegal  hiring 
against  the  defendant.  The  petition  contains  a  claim  for  damages 
to  the  amount  of  one  hundred  dollars,  exclusive  of  the  penalty 
fixed  by  law.  The  testimony  is  somewhat  contradictory  as  to  the 
value  of  the  services  of  the  slave.  She  is  a  girl  about  twelve  years 
of  age,  and  if  healthy,  her  work  and  labor  must  be  presumed  to  be 
worth  something.  Be  this,  however,  as  it  may,  it  is  in  evidence 
that  one  hundred  dollars  were  paid  by  the  husband  of  the  plaintiff, 
in  recovering  possession  of  this  slave.  Although  the  conduct  of 
the  defendant,  as  shown  by  the  proof  of  the  cause,  cannot  be  held 
as  criminal,  yet  viewed  either  as  an  individual  or  a  justice  of  the 
peace,  there  is  such  remissness  and  negligence  on  his  part,  as  ought 
to  subject  him  to  all  loss  and  damages  actually  suffered  by  the 
plaintiff  in  relation  to  her  property,  of  which  he  had  possession, 
without  right  or  title.  Judgment  reversed. 

5. 

STRAWBRIDGE  v.  TURNER,  et  al.  March  T.  1836.    9  Louisiana 

Rep.  213. 

This  was  an  action  brought  by  the  plaintiff  to  recover  from  the  Where  the 
defendants,  owners  of  the  steamboat  Chesapeake,  the  value  of  a  aTteam-° 


slave  alleged  to  have  been  illegally  employed  by  the  captain  of  the 

boat  as  a  hand,  without  the  authority  or  consent  of  the  plaintiff;  tobVem- 

and  while  in  this  service  was  drowned. 

Per  Cur.  Martin,  J.  The  plaintiff  claims  the  value  of  a  slave, 
employed  as  a  hand  on  board  the  steamboat  Chesapeake,  by  the 
defendants,  without  his  authority  or  consent,  and  who  was  drown-  thority  and 
ed  by  jumping  or  falling  overboard.  This  case  was  before  this  ^"master" 
court  last  year,  and  remanded  for  a  new  trial.  See  8  Louisiana  and  he  was 

accidentaly 
Reports  537.  drowned, 

After  the  cause  was  remanded,  and  before  the  second  trial,  the  Jhefownera 
plaintiff  amended  his  petition,  by  the  addition  of  an  averment,  that  of  the  boat 
the  defendants,  by  due  diligence,  might  have  prevented  the  slave  sponsibie 
being  employed  as  a  hand.     The  parties  went  to  trial  on  this  addi 
tional  allegation  to  the  former  cause  of  action.     There  was  a 
second  verdict  and  judgment  for  the   plaintiff,  and  the  defendants 
appealed. 

The  fact  of  the  slave  being  employed  as  a  hand  on  board  the 


448  SLAVERY. 

steamboat,  was  fully  proved.  It  further  appears,  that  the  plaintiff 
on  hearing  his  slave  was  on  board,  went  there  with  the  intention 
.  of  arresting  him,  and  in  the  attempt,^the  boy,  in  endeavoring  to  ef 
fect  his  escape,  fell  overboard,  and  was 'drowned. 

The  defendant's  counsel,  urged  with  some  earnestness  in  the 
argument  of  the  case,  that  the  hiring  and  employment  of  the  slave 
was  not  the  immediate  cause  of  the  drowning ;  but  that  it  was  oc 
casioned  immediately  by  the  pursuit  of  the  master. 

The  plaintiff  on  the  other  hand,  produced  evidence  which  shows 
clearly  the  want  of  due  diligence  in  the  owners  of  the  steamboat, 
in  suffering  the  slave  in  question  to  be  engaged  for  several  days  in 
unloading  and  loading  her  in  the  city  of  New  Orleans,  where  they 
resided.  This  they  could  have  prevented  and  did  not.  The  plain 
tiff  has  had  two  verdicts  in  his  favor.  His  slave  absconded,  and 
went  on  board  the  steamboat  in  an  illegal  and  improper  manner. 
He  was  illegally  and  without  authority  hired  by  the  master,  of 
which  fact  the  jury  seem  to  have  believed  the  owners  had  notice. 
It  does  not  appear  that  they  made  any  inquiry  whether  he  was 
employed  on  board  with  or  without  the  knowledge  and  consent  of 
the  plaintiff,  his  master.  The  verdict  must  therefore  stand,  and 
remain  undisturbed. 


INDEX. 


ABATEMENT,  [See  Hiring.] 
ABSENCE, 

Leave  of,  [See  Fugitive.] 
ABSOLUTE,  Deed,  [See  Deed,] 

Property,  [See  Frauds.] 

Vice,  [See  Warranty.] 
ABUSE, 

of  slaves,  [See  Liabilities  to  mas 
ter. 
ACCESSORY, 

before  the  fact,  [See  Crimes.] 
ACCOUNT,  [See  Mortgage,  Remainder.] 

ACNOWLEDGMENT, 

by  possessor,  [See  Frauds.] 
ACQUITTAL, 

Judgment  of,  [See  Crimes.] 
Verdict  of,  [See  Liabilities  of  mas 
ter  and  others.] 
ACTIONS, 

against  Co-tenant,  [See  Recovery.] 
joint,  for  freedom,    [See  Freedom.] 
on  the  Case,  [See  Harboring.  De 
ceit.] 

for  Damages,  [See   Liabilities  of 
and  to  master.  Damages.] 
of  Detinue.    [See  Detinue.    Mort 
gage.  Possession.  Fugitive.] 
For  the  price  of  slaves,  [See  War 
ranty.] 

of  quanti-minoris,  [ib.] 

of  Recovery,  [See  Recovery.] 
Redhibitory.  [See  Warranty.] 
to  rescind  the  sale,          [ib.] 
of  Trespass  for  labor  and  services, 

[See  Damages.] 

of  Trespass,     and   false    imprison 
ment,  [See  Freedom.] 
of  Warranty,  [See  Warranty.] 
in  suits  for  freedom.  [SceFreedom.] 
civil,  for  enticing  away  slave,   See 

Liabilities  to  master.] 
ACTS,    of   Slaves,    [See   Liabilities    of 
master.] 


of  benevolence.         [ib.] 
Criminal,  [ib.] 

of  North  Carolina,  See  Gifts, 
Public.    Manumission     of    Daugh 
ter,  by,  [See  Emancipation.] 
of  servants,  [See  Liabilities  of  mas- 

ter.] 

ADMINISTRATION,  [See  Emancipation.] 
ADMINISTRATOR,  [See  Detinue.] 
assent  by,  [See  Possession.] 
Reclaiming  a  slave  by,  [See  Eman 
cipation.} 
ADMISSION, 

of  freedom,  [See  Emancipation.] 
ADMISSIBILITY, 

of  parol  evidence,  [See  Hiring.] 
ADVANCEMENT, 

to  a  child,  [See  Parent.] 
ADVERSE, 

possession,  See  Infant.  Limitation. 
Mortgage.    Possession.  Property.} 
ADVERTISEMENT, 

of  unreclaimed  slave,  [See  Fugitive.] 
affecting  rights  of  master,         [ib.] 
AFRICANS, 

Negroes  imported    from  Madagas 
car  may  be  slaves.  11 
Are  slaves  since    brought  into  colo 
nies*  12 
Age, 

certain    slaves   directed    to   be    set 
free  at,    [See  Emancipation.] 
slave  under  thirty  years,  [ib.] 
particular,  manumission  by  will  to 
take  effect  at,  [ib.] 

AGENT, 

Importation    of    slaves    by,     [See 

Emancipation.] 
A  slave  may  be,  [See  Liabilities  of 

master.] 

Public,  sales  by,  [See  Warranty.] 
AGREEMENT, 

for  freedom,  [See  Emancipation] 
57 


450 


INDEX. 


Parol,  loan  of  slaves  under,  [See 

Possession.] 

aid  of  magistrate,  to  prevent  trans 
portation  of  slave,  [See  Emanci 
pation.] 

ALLEGATION, 

that    a    slave    was    a     thief,    [See 
Warranty.] 

ANIMO,  Morandi,  [See  Emancipation.] 

ANCESTORS, 


AUTHORITY, 


slaves,   acting   with    or    not,     [See 

Liabilities  of  master.] 
AUNT, 

maternal,  judgment    in    favor    of, 

[See  Judgment.] 
BAILEE,  [See  Consideration.] 


BAR, 


for  recovery  of  Dower.  [See  De 


vise. 


Indian,  descent  from,  [See  Judg-  \  BASTARDY, 


ment.     Freedom.] 
ANOTHER, 

state,  removal  of    slaves    to,  [See 

Emancipation.] 
APPLICATION, 


Imprisonment   of  slave   for.     [See 
Fugitive.'] 


BATTERY, 


of  warranty  to  other  chattels,  [See  j  BEATING    Slaves. 
Warranty.]  BENEFIT, 


of  slaves.     [See  Liabilities  to  mas- 
ter.] 


[ib.] 


APPORTIONMENT, 

of  wages,  [See  Hiring.] 

ASSAULTING, 

of  slaves,  [See Liabilities  to  master.] 

ASSEMBLY, 

Unlawful,  slave  at,  ib. 

ASSENT, 

by    Administrator,    [See    Detinue. 
Possession.] 

by  Executor,    [See  Detinue.] 
of  State,  to  will  or  deed  of  manu 
mission,  [See  Emancipation.] 

ASSETS, 

for  the  benefit  of  creditors,    [See 

Slaves.] 

slaves  are  considered  as,  [ib.] 

slaves  in  the   hands  of  executors, 

[See   Executor.] 

ASSUMPSIT,  [See  Mortgage.] 

ATTACHMENT, 

Against  fugitive  slaves,  [See  Fugi 
tive.] 

for  debts  of  vendor,  [See  Sale.] 
when  writ  of,  may  issue,  [See  Free 
dom.] 

ATTEMPT, 

By  a  negro  to  ravish  a  white  wo 
man,  [See  Crimes.] 
to  murder  a  slave,  [See  Liabilities, 
to    master.] 

to  compel  master  to  accept  com 
pensation,  [See  Emancipation.] 

ATTENDANCE, 

medical,  upon  a  slave,  [See  Lia 
bilities  of  master.] 


[See 


of      creditors,     assets     for, 
Slaves.] 

of  slave,  [See  Emancipation.] 
BENEVOLENCE, 

acts  of,  [See  Liabilities  of  master.] 
BEQUEST, 

of  liberty,  [See  Emancipation.] 
BILL,  of  Sale, 

[See     Gifts,    Mortgages,     Sa/e,] 

Warranty.] 
BLACKS,  presumed  slaves  from  color  195 

BONA-FIDE. 

Loans,  [See  Fraud] 

Vendee,  [See  Fugitive.  Vendee.] 
BOND,  to  restore  slave,  [See  Hiring.] 
BROKER,  sale  by,  [See  Warranty.] 
BUYER, 

of  a  slave  on  condition,  [See  Con 
dition.] 
CAPITAL-CHARGE. 

Against  slaves,  [See  Liabilities  of 

Master.] 

crime,    [See  ib.  Warranty] 

felony,  [ib.] 

offence,          [ib.] 
CAROLINA,  North,  [See  Crimes  Gifts.] 

South,  [See  Incapacity,  Warranty.] 
CASE- Action  on,     [See  Harboring] 

Kedhibitory,     [See  Warranty.] 
CERTIFICATE,  of  manumission. 

Registory  of,   [See  Emancipation.] 
CESSION  of  North  West  Territory,  [See 

Emancipation.] 

CHANCERY,  Court  of,  [See  Recovery  ] 
CHARGE, 

Capital,  [See  Liabilities  Master.] 


INDEX. 


451 


CHATTELS, 

other,  application  of  Warranty  as 
to,     [See     Wrranty.} 
Personal,     slaves     are     consider 
ed.  2.  37 

CHILD, 

petition  for  freedom  by,  [See 
Emancipation.] 

conveyance  of  slaves  to,  [See  Pa 
rent.] 

slaves,devised  to,  [See  Remainder.] 
when  a  stain-liber,  [See  Emanci 
pation.'] 

CHILDREN,    Grand,  [See  Devise.] 

bond  or  free  according  to  condition 
of  mother,  3.  24 

Born  during  life  of  devisee  slaves.  26 
Born  during  a  qualified  manumis 
sion  of  their  mothers,  are  slaves.  35 
Manumission  of,  [See  Emancipa 
tion.] 

of  a    statu-liber,  [See   Emancipa 
tion.] 
[See  Increase,  Division,  Mortgage.] 

CITIZEN,  importation  of  slaves  by,  [See 
Emancipation.] 

CLAIM, 

of  freedom,  [See  freedom.  Pre 
scription.] 

for  hire,  [See  Hiring.] 
of  a  slave,  by  prescription,    [See 
Prescription.] 

COLONIES, 

Africans  brought  into,  [See  Afri 
cans.] 

COLOR.  [See  Freedom.] 

persons  of,  presumed  slaves.       57. 
"    free  in  certain  cases, 
"       "  entitled    to  a   trial 
by  jury,    [See  Crimes.] 

COMMON  LAW, 

rules,     as   to  remainder,  [See  Re 
mainder.] 
[See   Gambling,  Crimes.] 

COMPENSATION, 

attempt  to  compel  master  to  ac 
cept, 

[See  Emancipation.] 
in  money,  when  may  be  mado  for 
slaves,  [See  Division.} 

CoMFLiED-Contract, 

of   manumission,   [See  Liabilities 
of  Master.] 

CONDITION, 


of  persons,    Power    of    State    to 
change,  [See  Emancipation.] 
of  service,  in  a  deed  of  emancipa 
tion,  [ib.] 

in  a  sale,  [See  Remainder^ 
of  slavos,  do  not  depend  exclusively 
on  civil  or  feudal  law.  10 

where  the  buyer  purchases  a  slave 
on,  to  return  him  in  a  specified 
time  if  he  does  not  like  him,  and  in 
the  mean  time  the  slave  is  injured, 
the  buyer  may  return  him  and  is 
not  liable  if  he  took  such  care  as  a 
man  of  prudence  takes  of  his  own 
concerns.  68 

CONDITION Ai.-Sale,    [See  Possession.] 

CONFESSION, 

of  slave  as  principal,  [See  Crimes.] 

CONGRESS, 

ordinance  of  1787,  [See  Emanci 
pation^ 

CONNECTICUT,   [See  Fugitive.] 

CONSIDERATION, 

of  deed,  when  may  be  inquired 
into.  55 

Of  marriage,  [See   Gift.] 
of  policy,  [See  Emancipation.] 

CONSTITUTION, 

of  Indiana,  [See  Emancipation.] 
of  Ohio,  [ib.] 

CONTRACTS, 

incapacity  of  slaves  to  make,  [See 
Incapacity.] 

made  by  the  slave,  {See  Liabili 
ties  to  Master.] 

of  manumission,  between  master 
and  slave,  [ib.] 

.complied  with  by  the  slave,  [See 
Emancipation,  Liabilities  of  Mas 
ter.] 

emancipation  by,  [See  Emancipa 
tion.] 
Executory,    [See    Warranty.] 

CONTRACT, 

Parol,  of  title  to  slaves  by,  59 

CONTRAVENTION  OF  LAW, 

a  bequest  of  liberty  to  slaves  in  [See 
Emancipation.] 

CONVEYANCE,  to  a  child,  [See  Parent.] 

CONVICTION, 

of  marriage  of  white  woman  with  a 
slave,  [See  White  Persons. 

COSTS, 

for  criminal  prosecution  of  slaves, 


452 


INDEX. 


[See  Liabilities  of  master.] 

of   suit,    when    recoverable,     [See 

Damages.] 

Co-tenant,  [See  Recovery.] 

COUNSEL,  lor  pauper  [See  Freedom] 

COURT  OF    EQUITY,     [See    Emancipa 
tion.  Freedom] 

COVENANT,  of  title,  [See  Remainder.] 
to  return  slave  hired,  [See  Hiring.} 

CRAZINESS,  of  slave  [See  Warranty] 

CREDITORS,  [See  Frauds,  Gifts.] 

Assets  for  benefit  of,  [See  Slaves.] 
of  Emancipator,  [See  Emancipa 
tion.] 

of  father,  [See  Possession.] 
judgment,  [ib.] 

rights,  violation  of,  [See  Emanci 
pation.] 
of  loanee  of  slaves,  [See  Possession. 

CRIMINAL, 

acts,  [See  Liabilities  of  master.] 

costs,  [ib.] 

motives  not,  [See  Harboring.] 

CRIMES, 

Notwitstanding  the  North  Carolina 
act  of  1741,  a  slave,  tried  for  a 
capital  crime  may  be  convicted  on 
the  testimony  of  a  slave,  though 
uncorroborated  by  pregnant  circum 
stances,  204 
An  Indictment  for  the  murder  of  a 
slave  which  concludes  at  common 
law,  is  good.  210 
A  slave  on  trial  for  a  capital  felony 
is  entitled  to  a  jury  of  slave  owners 
[See  Note  to  this  case,]  212 
The  master  of  a  slave  cannot  be 
compelled  to  testify  on  an  indict 
ment  of  his  slave  for  a  capital 
offence.  214 
Slaves  are  not  liable  to  be  punished 
with  death,  in  any  case  where  a 
freeman  is  not  subject  to  the  same, 
except  only  in  the  cases  mentioned 
in  the  47  sec.  of  the  act  of  1741  ; 
and  the  discretion  allowed  in  these 
cases  must  apply  to  the  quantum  or 
measure,  not  to  the  degree  of  pun 
ishment.  219 
Free  persons  of  color  are  entitled 
to  a  trial  by  jury,  and  cannot  be 
tried  for  oflenc.es  by  justices  of  the 
peace,  222 
A  slave  cannot  be  twice  tried  and 


punished  for  the  same  offence,  [See 
Note  to  this  case.]  222 

The  confession  of  a  slave  of  his 
own  guilt  as  principal,  is  evidence 
on  the  trial  of  a  white  man  as  ac 
cessory  before  the  fact.  223 
The  statute  relative  to  the  tribunal 
for  the  trial  oi  negroes,  <fcc.  is  ex 
elusive.  223 
Attempt  by  a  negro  to  ravish  a 
white  woman  under  or  above  the 
the  age  of  twelve  years,  is  a  felony 
punishable  with  death,  224 
Though  a  judgment  of  acquittal  was 
rendered  in  prisoner's  favor  where 
on  an  attempt  of  carnal  knowledge, 
he  used  no  force.  224 

[See  Liabilities  of  Master.  Warranty.] 

CURING, 

slave,  of  disease,  [See  Liabilities  of 
master.] 

DAMAGES, 

for  the  negligence  of  a  slave,  [See 
Liabilities  of  Master.] 
as  to,  for  illegally  holding  a  person 
in  slavery.  409 

Held  that  negroes  and  mulattoes  are 
notentitled  to — for  detention,  while 
held  in  slavery.  409 

Where,  nominal  only,  will  be  giv 
en.  409 
A  person  who  has  recovered  free 
dom,  may  maintain  an  action  of 
trespass  for  labor  and  services 
whilst  held  in  slavery.  409 
"Where  costs  of  suit  and  wages  are 
recoverable  by  a  slave  who  has 
prosecuted  for  her  freedom.  410 
[See  Liabilities  of  and  to  Master 
and  others.'  Recovery,] 

DAUGHTER, 

devise  to — forlife,{See  Remainder.] 
manumission     of — by    mother     of 
slave,  [See    /''mancipation.] 
infant,    [See  Possession.] 
married,    loan    of  slaves  to,  [See 
Frauds.] 

slaves  sent  to  husband's  house  on 
marriage,  or  afterwards,  are  gifts  to 
husband.  72.  73 

DEATH, 

a    contract   of    manumission   after 

owner's,  [See  Emancipation.] 

of  husband,  in  lifetime  of  wife,  [See 


INDEX. 


453 


Dev ise.]of  slave  hired,  [See  Hiring.] 
punishment  of  slaves,  with,  [See 
Crimes.] 

of  tenant  for  life  of  slaves,  [See 
Hiring.] 

of  Testator,  [See  Devise,  Hiring.] 
of  devisee  for  life,  [Sea  Emancipa 
tion.] 

DEBTS,  of  fugitive  slave,  [See  Fugitive.} 
of  testator,  [See  Emancipation.} 
hustnnd's,  [See  Frauds.} 
of  vendor,  [See  Possession,  Sale.] 
"      **          Attachment  for,  ib. 

DECEIT, 

in  an  action  upon  the  case  in  the 
nature  of — the  defect  must  be  ma 
terial.  130 
Of  seller,  [See  Warranty.] 

DECLARATIONS, 

in  detinue,  [See  Detinue, 
of  tenant's  for  life.  [See  Hiring.] 
or  promises  to  a  Slave,  [See  Eman 
cipation.] 

parol,  by  owner  of  slave,  [See 
Freedom.] 

DECREE, 

of  a  court  of  equity,  [See  Emanci 
pation.] 
rendition  of,  [See  Hiring.] 

DEDUCTION, 

of  price  of  slave,   [See  Warranty.] 

DEEd,  of  emancipation  when  void,  [See 
Emancipation.] 

"         not  properly  recorded,  [ib.] 
when  consideration  of,  may  be  in 
quired  into.        [See  Gifts.]        55. 

DEFECTS,  material,  [See  Deceit.] 
mental,  [See  Warranty.] 
redhibitory,  [ib.] 

DEFRAUD, 

intention  to,  [See  Parent,  Pos 
session.] 

DELIVERY, 

of  slaves,  [See  Gifts,  Possession.] 
"  fictitious,  [See  Sale.] 

DEMAND,  by  owner,  [See  Hiring.] 

special, of  hirer  when  necessary,  [ib.] 

DEMMURRER,  [See  Emancipation.] 

DESCENDANT, 

of  Spanish  woman,  [See  Emanci 
pation,] 

DESCENT,  [See  Incapacity.] 

from  Indian  ancestors.  [See  Judg 
ment.] 


DETINUE, 

Judgment  in.  The  Plaintiff  is  en 
titled  to  the  specific  slave  if  in  the 
defendants  power,  a  tender  of  the 
ultimate  value  is  no  discharge  un 
less  the  plaintiff  elects  to  take 
it.  "  432 

Declaration  in,  must  state  plaintiff's 
ownership,  and  the  names  of  the 
slaves.  433 

An  heir  cannot  maintain  an  action 
for  slaves  without  assent  of  adminis 
trator.  43 

But  a  devisee  may,  without  execiH 
tors  assent.  «•  434 

No  demand  previous  to  writ  neces 
sary.  434 
Executors  and  administrators  mav 
maintain  action  of.  434 
I  [See   Fugitive.   Mortgage.   Possession. 

Recovery.] 
DEVISE 

general — slaves  pass  as  personal  es-r 
late  under,  39 

Will  pass  all  those  which  the  testa 
tor  had  at  his  death,  and  the  devise 
speaks  from  the  time  of  his 
death.  59 

Incapacity   of  slaves  to   take    by, 

[See  Incapacity.} 
Held  that  grand-children  might 
claim  under  a  devise  of  slaves,  by 
the  description  of  children,  in  cases 
where  there  are  no  children.  58 
Profits  of  slave  devised,  [See  Re 
mainder.] 

To  a  slave,  in  Virginia  over  forty- 
five  years  of  age,  is  invalid,  319 
Where  a  man  devises  certain  slaves 
to  his  wife  during  her  life  or  widow 
hood  and  died  intestate  as  to  other 
slaves,  and  she  afterwards  married; 
held  that  by  not  recovering  her  first 
husband's  will,  was  a  bar  from  re 
covering  her  dower  in  the  undevised 
slaves.  328 

[See  Emancipation  Remainder.] 
DEVISEE, 

Held,  that  where  a  negro  woman 
was  devised  to  one  during  the  life 
of,  and  then  to  be  free  ;  children 
born  during  the  life  of — would  be 
slaves.  26 

The    same    principle   adopted    in 


454 


INDEX. 


New- York.  26 

[See  Detinue,  Emancipation,  Ex 
ecutors  ] 

DEVISOR,  [See  Remainder.] 

DISEASE, 

Curing  a  slave  of,  [See  Liabiliiies 
of  master. 

Disguising  violence  of,  [See   War 
ranty.] 
Incurable,  [$•] 

DISTRIBUTEE,  [See  Posszssion.] 

DIVISION, of  Slaves,  [See  note]  183 
Compensation  in  money  may  be 
made,  when  slaves  cannot  be  di 
vided  without  separating  infant 
children  from  their  mothers,  and 
the  court  may  order  Sheriff  to  hire 
them  out.  183 

Must  be  according  to  the  laws  of 
the  owner's  domicil.  184 

DOMICIL,  [See  Division.] 

DONATION, 

of  Slaves  is  void  without  an  esti 
mate,  in  Louisiana.  66 
To  an  infant,  [See  Infant.] 

DONEE,  Gift  of  a  slave  to,  [See  Possession. 
In  possession  by  gift,  and  under 
the  Statute  of  Limitations,  [See 
Gifts.] 

DONOR,  [See  Gifts.] 

DOWER,  [See  note.]  181 

Slaves  of  wife,  right  of  husband's 
representatives  to,  [See  Wife.] 
Where  a  widow  holding  slaves  as- 
marries,  they  belong  to  the  second 
husband  and  his  representatives, 
until  her  death.  181 

Slaves  held  in  right  of,  vest  in  the 
second  husband,  and  in  his  repre 
sentatives  during  the  life  of  the  wi 
dow,  subject  only  to  her  right  of, 
as  part  of  her  husband's  es 
tate.  182 
And  her  right  to  manumit  them,  is 
gone.  183 
Bar  for  recovery  of,  [See  Devise.] 

DRUNKENNESS,  [See  Warranty] 

EMANCIPATION,  of  Slaves. 

The  owner  of  a  slave  is  at  liberty 
to  renounce  his  right,  absolutely  or 
in  any  modified  manner,  yet  con 
siderations  of  policy  may  justify 
legislative  interference.  279 

Liberates  the   slave  as  to  the  own 


er  and  all  the  world,  excepting 
only  bona  fide  creditors,  or  some 
other  person  who  has  a  better 
right  than  the  emancipator.  280 
In  Louisiana,  a  deed  of  emancipa 
tion  of  a  slave  under  thirty  years  of 
age,  is  void.  281 

A  deed  of,  not  properly  recorded, 
gives  no  title  to  freedom.  284 

But    the  rule  in  Kentucky  is  diffe 
rent.  284 
If  a  master   gives   freedom    to  his 
slave,  under    an  express  condition, 
that   he  shall  serve  him,  (the   mas 
ter)   until  his    death,  and  the   slave 
afterwards  refuses  to  serve,  and  at 
tempts  to  compel  his  master  to  ac 
cept  a  monthly  compensation  there 
for,  he    cannot  obtain   his   freedom 
after  the  master's  death.              285 
The    idea  that  a  will  emancipating 
slaves,  or  a  deed  of  manumission, 
is  void  in  Tennessee,  is  ill-founded  ; 
it  is  binding  on  the  representatives 
of  the  Deviser  in  one  case,  and  the 
grantor  in  the  other  ;  and  commu 
nicates  but   an   imperfect  right   to 
the  slave,  until  the  JState  assents  to 
the    contract,  and  it  makes  no  dif 
ference    whether  the  assent  of  the 
State   was  had    before  the   will    or 
contract  made.                              287 
Where  the  mother  of  a  slave  manu 
mits  her  daughter  by  a  public   act, 
to   take   effect  upon    the    mother's 
death,  the    child   is,  in  the    mesne- 
time,  a    statu   liber.  [See   note    to 
this  case.]                                     305 
And   the  children  of  a  statu  liber, 
born  before  the  grantor's  death  are 
slates.                                          306 
Where  the  overseers  of  a  town  ma 
numitted    a  slave,  the  certificate  of 
which  was  registered  at  the  request 
of  the  executors  of  the  owner,  the 
court  held  it  to  be  a  sufficient  ma 
numission    of  the    slave,   and  evi 
dence    to  charge  the  town  with  his 
maintenance.                               307 
Upon    an    informal    emancipation, 
the    master    promising   to    comply 
with  the  legal  formalities,  does  not 
affect   his     rights    until    he     does 
so.                                              307 


INDEX. 


455 


A  contract  to  manumit  by  the 
owner  after  his  death,  is  obli 
gatory.  309 
The  manumission  of  a  slave  by  j 
two  of  three  joint  owners,  entitles 
him  to  freedom,  especially,  where 
the  other  owner  suffers  him  to  act 
as  free,  and  does  not  claim  him  as 
a  slave.  310 
Not  valid  where  creditor's  rights 
are  violated.  310 

[See  note  to  this  case.] 
In  Maryland  an  infant  and  a  slave 
under  the   age   of  forty-five  years 
cannot  be  emancipated.  311 

Held  by  the  court,  that  Emancipa 
tion  by  deed  or  will  made  before 
May  1782,  even  where  freedom  is 
to  take  effect  at  a  future  time,  is  un 
lawful  and  void.  311 
A  bequest  of  liberty  to  slaves,  in 
contravention  of  the  law  of  the 
state,  is  void.  311 
The  same  where  a  will  has  been 
declared  inoperative  by  a  decree  of 
a  court  of  equity.  312 
On  a  petition  for  freedom  by  a 
child  whose  parent  was  to  be  free 
on  the  death  of  a  devisee  for  life, 
and  during  which  life  the  child  was 
born — a  demurrer  will  lie.  313 
Of  a  female  slave,  with  a  reserva 
tion  that  her  future  increase  shall 
be  slaves,  the  reservation  is  void.  31 
To  render  a  manumission  effectual, 
there  must  be  some  certificate  or 
writing,  delivered  by  the  master  to 
the  slave  or  to  some  third  person 
for  his  benefit.  313 
A  manumission,  when  of  a  certain 
age,  and  permitted  by  law,  is  good, 
but  not  against  creditors  or  pur 
chasers.  314 
Manumission,  dependent  on  the  laws 
permitting  the  same.  315  S17. 
Whether  a  slave  who  is  directed  to 
be  set  free  at  a  certain  age  by  his 
masters  last  will,  can  have  the  aid 
of  a  magistrate  to  prevent  his  trans 
portation  out  of  the  state  before  the 
time  ofenfranchisement.  317 
Where  a  manumission  by  will  is 
given  to  take  effect  at  a  particular 
age,  and  the  slaves  are  afterwards 


removed  to  another  state.         319 
A  devise  emancipating  the  slaves 
of  the  testator  with  their   children 
at  thirty  years   of  age,  manumits 
the  children  when  the  mother  at 
tains  that  age.  326 
A  manumission    by  will,  gives   no 
title  to  freedom  where  the  personal 
estate  is   not  sufficient  to  pay  the 
debts  of  the  testator.  327 
A  slave  cannot  be  emancipated  by 
a  nuncupative  will,  nor  by  an  execu 
tory   or  conditional  instrument    in 
writing.  328 
And  are   subject  to    the    debts    of 
testator.  330 
No  declaration  or  promise  made  to 
a  slave,  or  for  his   benefit,  by  the 
owner  or  any  other   person,  can  be 
enforced    by    a    court    of   law    or 
equity.  331 
Contra^  where  the  slave  was   sold 
for  a  term  of  years,  with  an  agree 
ment  that  he  should  be  manumited 
at  its    expiration   by   the    vendee, 
which  was  done  ;  held  that  he  was 
entitled  to  freedom.  332 
A  master  who  agrees   to   free  his 
slave  for  a  certain  sum,  cannot  be 
compelled  to  do  so    after  a  partial 
payment  only.  332 
Parol  evidence  of  an  agreement  for 
the  freedom  of  a  slave  is  inadmis 
sible.                                              334 
If  the  owner  of  a  slave  remove  with 
his  family  from  Kentucky  to  Ohio, 
animo  morondi,   taking  her  thither 
as  part  of  his  family,  she  becomes 
free  ipso  facto.  335 
An  agreement   by  a  master  going 
with  slave  into  a  state  where  slavery 
does   not  exist,  to  accept  a  tempo 
rary  servitude   of  the  slave,  is  an 
admission    of  freedom,    which  he 
nor   others  under   him  cannot  de 
ny.  339 
VVhere  a  slave  was  taken    by  his 
master    from  Virginia  into    Mary- 
and,   where  the  law   declares    that 
slaves  carried  into  for  sale  or  to  re 
side  shall  be  free,  and  after  a  resi 
dence  of  twelve    years,  was  taken 
back    into   Virginia,    held    by    the 
court  that  he  was  free.  339 


456 


INDEX. 


Maryland,  and  afterwards  imported 
back  into  A^irginia  in  manifest  vio 
lation  of  the  statute,  is  fiee.  35£ 
The  treaty  of  cession  by  Virginia 
to  the  United  States,  does  not  ren 
der  void  that  article  of  the  ordinance 
of  Congress  of  1787,  prohibiting  sla 
very  in  the  North  West  Territory  : 
any  state,  by  its  constitution  may 
prohibit  slavery  within  its  limits, 
and  slaves  born  within  the  limits  oi 
the  North  West  Territory  since 
the  ordinance  of  1787  are 
free-  340.  356 

The  power  of  a  State  to  change  the 
condition  of  persons  held  under  its 
laws   in   slavery   cannot    be    ques 
tioned.  346 
The  residence  of  a  shve  in  a  free 
state  contrary  to  his  master's  will 
or   consent,  does  not  deprive    the 
owner  of  his  right  of  propery.    347 
Held  in  Maryland  that  a  slave  is 
not  free  under  the  laws  of  Penn 
sylvania,  where  the  hirer  is  an  in 
fant.                                              348 
A  sojourn  of  a  slave  in  France  ef 
fects   an  immediate  emancipation, 
so  that  her  former  owner  on  his  re 
turn   with  her  to  Louisiana   could 
not  reduce  her  to  slavery.          348 
Purchase  of  a  slave   in  u  countrv 
where  slavery  is  not  tolerated.  349 
In  Indiana  slavery  is  prohibited  bv 
the  constitution.                            353 
A  negro   held   under  a  deed  exe 
cuted  in  Arirginia,  in  servitude  in 
Ohio,  is  entitled  to  freedom  by  the 
constitution.                                   354 
A  negro  born  out  of  the  State,  de 
scended  from  a  Spanish  woman,  ad 
judged  free.                                   355 
The  act  prohibiting   the    importa-  | 
tion  of  slaves  in  Arirginia,  applies  to  . 
voluntary  importations  only.       356  i 
Contra.                                        382 1 
But    the  importation  may  be  by  an  I 
aSent-                                           "380 1 
A   slave  voluntarily  brought  by  his  j 
owner  into  the  State  of  Massachu-  ! 
setts,  is  free.                                 357  [ 
A  sojourn  of  the  master  with   his 
slave  for  six  months  in  Pennsylva-  ,' 


nia,  will   entitle  the   slave  to  free 
dom.  375 
As  to  the  reclaiming  of  a  slave  who 
had    escaped    from    his    master   in 
Virginia    to   Massachusetts,  by  the 
administrator  of  the  owner.        376 
As  to  importation  of  slaves  by  citi 
zens    after   a   temporary  residence 
abroad.                                         378 
Certain    formalities  of  the    act  of 
1792,  need  not  be  observed  by  citi 
zens    of    Virginia   removing    from 
the  State  with  their  slaves    and  re 
turning  with  them.                       379 
In    Louisiana  a  slave  does  not   be 
come    free    on    being    illegally  im 
ported  into  the  State.                  380 
A  slave   brought  into  the    State  of 
New- York   after   June   1785,  and 
sold  after  October  1801,  is  entitled 
to  be  free.                                     35 1 
Sale  in  New- York  by  due  course  of 
administration.                              381 
An   imported  slave  must  be   regis 
tered  in  Virginia,  or  he  will  be  en 
titled  to  freedom.                        381 
A  minor  in  A^irginia  can  do  no  act 
to  affect  his  rights  under  the  act  to 
prevent  importation.                    382 
The     child    of     a    slave,   born  in 
Pennsylvania,  is  free.                  383 
The  indenture  of  service  of  a  slave, 
who  binds  herself  to  serve  her  mis 
tress  in  a    free  state,  in   considera 
tion  of  manumission,  is  void.     383 
Held   in    New- York,  where  a  per 
son  brings  an  action  against  anoth 
er,    he    cannot  claim    him    as    his 
slave.                                              385 
A  devise  of  property  to  a  slave  by 
the  owner,  entitles  the  slave  to  free 
dom  by  implication.                     385 
Of  a  slave  under  thirty  years  of  age 
is  void  in  Louisiana.            *      386 
Mode  and  effect  of,  [sea  note.}  386 
EMANCIPATOR,  [See  Emancipation.} 
EMPLOYMENT, 

slave  not  acting  in  master's,  [See 
Liabilities  of  master. 
ENFRANCHISEMENT,    [See    Emancipa 
tion.} 

ENTICING-— away,  [See   Liabilities    to 
master.} 
Same  where  a  slave  was  carried  to 


INDEX. 


457 


EQUITY, 

court  of,  [See  Emancipation.  Free 
dom.] 
Decree  of,  [See  Emancpation.] 

ESCHEAT, 

To  the  state,  Slaves  do  not,  ]See 
Slaves.] 

ESTATE, 

Personal,  [See  Emancipation,  Per 
sonal  Estate.} 

Personal  and  Real,  slaves  are  con 
sidered.  2.  36.  37  j 

EVID  ENCE, 

Hearsay,   [See  Freedom.] 

Of   fraud,    [See    Mortgage,   Pos-  \ 
session.] 

Of  property,  [See  Possession.] 

Parol.     [See    Emancipation,    Hi 
ring,  Mortgage,  Warranty.] 

Presumptive,  [See  Possession,  Li-  \ 

abilities  to  master.] 

Rule  of,  in  suits  for  freedom,    [See  ! 

Freedom.] 

[See  Judgment.] 
EXECUTION, 

Seizure  of  slaves  under,  [See  Pos 
session.] 
EXECUTORS, 

Assent,  [See  Detinue.] 

Held    that  slaves  devised,  are    not 

assets   in  the  hands  of,  but    belong 

to  the  devisee.  59 

Contra.  [See  Slaves.] 

When    hire     can      be      recovered 

by,  [See  Hiring.] 

[See        Detinue,      Emancipation, 

Wills,   Warranty.] 
EXECUTORY, 

Contract,  [See  Warranty.] 
EXPRESS, 

Warranty,  [See  Warranty.] 
EXTENT, 

Of  Warranty,  as  to  increase.  [See 

Warranty.] 
FACTS, 

Not  discernible,  omission  to  disclose 
[See  Warranty.] 

Knowledge  of  by  purchaser,  [ib.] 

[See  Incapacity,  Possession.] 
FALSE  Imprisonment  and  Trespass, 

Actions  for,  [See  Freedom.] 
FAMILY, 

Removal    with   slaves   into    a  free 

State,  [See  Emancipation.] 

58 


FATHER, 

Creditors  of,  [See  Possession.] 

Donee's  [See  Infant.] 

Slaves  of — sent  to  son-in-law,  [See 

Gifts.] 

FELONY, 

capital,  trial  for,  [See  Crimes.] 
[See  Stealing.] 

FEMALE, 

Slaves  of,  [See  Husband.] 

FEMALE  SLAVES,  [See  Increase.] 

FEME-Sole, 

marriage  of,  [See  Remainder.] 

FICTITIOUS,  sale,  [See  Gifts.] 
Delivery,  [See  Sale] 

FIVE,  years, 

Possession  of  a  slave  in  Kentucky, 
and  Virginia,  [See  Possession.] 
[See  Frauds.] 

FORMALITIES,  legal,    [See    Emancipa 
tion* 

FORMS, 

of  action,  in  suits  for  freedom,  [See 
Freedom.] 

FORNICATION, 

imprisonment  for,  [See  Fugitive*[ 

FRANCE, 

sojourn  of  a  slave  in,  [See  Eman 
cipation^ 

FRAUDS  [See  Note  at  foot  of  page  87. 
Five  years  possession  gives  an  ab 
solute  property  unless  otherwise 
declared  by  writing  proved  and  re 
corded.  [See  Note  to  this  case.]  87 
This  principle  is  founded  on  the 
delusive  credit  acquired  by  the 
possessor.  398 

An  acknowledgment  by  possessor 
that  the  property  belongs  to  another 
will  not  avail.  89 

Slaves  loaned  to  a  married  daugh 
ter,  are  subject  to  be  levied  on  and 
sold  for  the  debts  of  the  husband 
by  act  of  Tennesse  of  1801, 
ch  25.  106 

The  third  sec.  of  the  same  act,  de 
claring  valid  all  bona  fide  loans  as 
between  the  parties,  and  as  to  cred 
itors,  the  property  is  in  the  loanee, 
unless  the  loan  is  registered.  103 
Statute  of,  [See  Gifts.] 
[See  Possession.] 

FRAUDULENT, 

and  void  deeds  and  gifts,  [See  Gift*. 


458 


INDEX, 


FREEDOM, 

Admission  of,  [See  Emancipation.] 
claims  for,  are  favored,  331 

"  [See   Kmancipation.] 
judgment  of,  [See  Judgment.] 
petition  for,  [See  Emancipation.] 
presumption  of,  [See  Prescription.] 
selling  a    slave,  entitled  to,  in  fu- 
turo,  [See  Warranty.] 
suits  for,  [See  Note,  page  388,  and 
Freedom.] 

title  to,  [See  Emancipation.} 
to  a  slave,  under  an  express  condi 
tion,    [See  ib.] 

What  length  of  possession  of,  re 
quisite  for  time  of  prescription.  104 
In  Virginia,  when  slave  entitled 
to,  under  law  of  1792.  338 

The  rule  of  evidence  in  suits  for, 
same  as  in  other  cases.  388 

A  suit  for,  may  be  brought  in  any 
state.  389 

The  proper  form  of  action  in  suits 
for,  is  trespass  and  false  imprison 
ment.  389 
In  an  action  for,  the  court  will  order 
the  slaves  protection  and  forthcom 
ing  at  the  trial.  389 
A  slave  may  maintain  an  action 
for,  against  a  person  other  than 
master.  389 
A  joint  action  for,  may  be  main 
tained  by  a  mother  and  her  chil 
dren.  390 
A  court  of  equity  will  in  a  proper 
case  for,  appoint  counsel  to  prose 
cute  for  pauper.  3Q1 
Onus  probandi,  rules  as  to,  and  on 
whom  it  lies,  392.  394.  404 
Presumption  of  slavery,  arising 
from  color  may  be  rebutted.  392 
In  a  suit  for,  hear-say  evidence  ad 
missible  to  prove  pedigree  of  plain 
tiff.  394 
Reputation  of  neighborhood  as 
evidence  in  trial  for.  395 
Contra.  407 
The  validity  of  a  recorded  will  can 
not  be  questioned  in  a  suit  for.  395 
Reputation  or  hear-say  evidence 
from  Indian  ancestors  when  admis 
sible  in  trial  for.  395 
Parol  declarations  by  the  owner  of 
a  slave,  that  he  purchased  her  to 


make  her  free,  is  evidence  of  manu 
mission.  404 
A  statu  libera  in  Pennsylvania, 
past  the  age  at  which  she  is  to  be 
free,  cannot  be  held  in  slavery  in 
Louisiana.  405 
Presumption  of  slavery  in  suits  for, 
arises  from  a  black  complexion, 
none  from  a  mulatto.  406 
A  record  of  judgment  in  another 
suit  in  favor  of  the  freedom  of  the 
mother,  may  be  used  as  evidence 
by  the  offspring.  407. 
When  a  bill  will  Ire  by  slaves  who 
have  instituted  a  suit  for,  to  restrain 
defendant  from  removing  and  sel 
ling  them  ;  and  when  an  attachment 
may  issue  to  take  them  out  of  his 
hands,  414 
[See  Emancipation.'] 

FREE  Persons, 

of  color,  trial  of,  [See  Crimes.'] 

FREE  State  residence  in,  [See  EmHn- 
cipation.] 

FUGITIVE  OR  RUNAWAY  SLAVES, 

An  attachment  in  another  state 
against,  for  a  debt  contracted  by 
the  slave,and  who  has  been  reclaim 
ed  by  his  master,  is  illegal  and 
void.  266 

A  fugitive  slave  imprisoned  for  for 
nication  and  bastardy,  will  not  be 
delivered  to  his  master,  unless  secu 
rity  for  the  maintenance  of  the  child 
is  given.  267 

A  written  agreement  given  by  the 
master  to  his  slave,  to  bargain  and 
trade  for  himself  for  a  stipulated 
period,  and  to  pass  and  repass  from 
Kentucky  to  Virginia,  is  unlawful 
and  void,  and  will  justify  his  being 
taken  up  as  a  runaway.  268 

The  provisions  of  the  statute  for  the 
sale  of — are  purely  directory,  and 
the  original  owner  of  a  slave  to  be 
sold,  will  not  be  permitted  to  dis 
turb  the  title  of  a  bona  fide  vendee 
at  a  sheriff's  sale,  on  account  of  ir 
regularity  in  the  sale  ;  but  if  the 
slave  sell  for  a  less  amount  on  ac 
count  of  such  irregularity,  indemni 
fication  may  be  obtained  from  the 
sheriff.  270 

In  Louisiana  an  unreclaimed  slave 


INDEX. 


459 


cannot  be  sold  until  two  years  after 
the  date  of  the  first  advertise 
ment.  275 
Where  a  defendant  arrested  a  run 
away  slave  and  secured  him  in 
irons,  and  informs  the  owner  (the 
Plaintiff)  of  his  capture,  proposing 
to  purchase  him,  and  the  latter  en 
ters  into  a  treaty  therefor,  that  if 
the  offer  should  be  accepted,  the 
slave  should  be  put  in  irons  and 
sent  to  him  on  the  first  opportunity, 
and  the  slave  afterwards  escapes, 
and  a  verdict  is  rendered  for  the 
defendant,  the  Supreme  Court  will 
not  set  it  aside.  277 
The  sale  of  a  runaway  slave  from 
Connecticut,  of  which  state  the  ven 
dor  and  vendees  were  residents, 
though  temporarily  in  New  York, 
where  the  sale  took  place,  was 
valid.  279 
The  law  does  not  require  a  master 
to  state  in  every  pass  to  what  place 
the  slave  shall  be  permitted  to  go — 
sufficient  if  it  express  a  leave  of 
absence  for  such  a  time.  279 
[See  Harboring.] 

FUTURE  INCREASE,  [See  Emancipation. 
Increase.'] 

GAMBLING. 

With  slaves,  is  no  offence  at  com 
mon  law  or  by  statute.  441 
Penalties  for,  with  slaves,  [See 
Gambling.'] 

GENERAL  DEVISE,  [See  Devise.'] 

GIFTS. 

Absolute  deed  of  slaves  where  the 
grantor  remains  in  possession  after 
the  execution  and  recording,  is  frau 
dulent  and  void  as  to  creditors  and 
subsequent  purchasers,  yet  it  can 
not  be  impeached  by  the  parties  or 
their  representatives.  48 

A  deed  of,  for  slaves,  which  is  not 
attested  by  a  subscribing  witness  is 
void.  42 

The  act  of  North  Carolina  of  1806 
requiring  gifts  of  slaves  to  be  au 
thenticated  by  writing,  cannot  be 
evaded  by  a  fictitious  sale :  there 
fore  where  the  donor  gave  the  donee 
the  purchase  money,  and  then  sold 
and  delivered  the  slave  receiving 


back  the  money,  held  to  bo  a  gift, 
and  void  without  a  deed.  43 

Such  gift  or  sale  would  by  the  7th 
section  of  the  act  of  1784  of  North 
Carolina,  be  good  between  the  par 
ties,  though  void  as  to  creditors  and 
purchasers.  45 

The  act  of  North  Carolina  of  1806, 
avoiding  gifts  of  slaves  unless  in 
writing  attested  by  a  subscribing 
witness  and  registered,  is  a  statute 
of  frauds,  made  for  the  protection 
of  donors,  and  a  deed  is  inoperative 
under  it,  against  the  donor,  unless 
so  attested  and  registered.  47 

A.  deed  for  slaves  in  Tennessee  is 
void  as  to  a  subsequent  purchaser, 
unless  proved  by  two  witnesses.  50 
Of  a  slave  by  deed,  delivery 
not  essential,  if  founded  on  a  good 
consideration,  such  as  natural  love 
and  affection.  60 

Parol  of  slaves,  before  the  act  of 
1785,  was  absolutely  void  in  Vir 
ginia.  61 
"  "  Not  good  without  a  written 
transfer  in  North  Carolina.  62 

"  "  "  Contra 

under  the  act  of  1784  as  between 
the  parties  and  volunteers  under 
them,  and  void  only  where  creditors 
and  purchasers  are  concerned.  62 

"  "  In  Kentucky  prior 

to,  and  under  act  of  1787.  67 

Of  slaves,  by  an  instrument  not 
under  seal  and  without  delivery, 
void  in  North  Carolina.  65 

In  consideration  of  marriage,  will 
be  presumed,  where  the  father  sends 
the  slaves  to  the  husband  immedi 
ately  afterwards.  71 
Verbal  of  slaves,  when  void  to  a 
woman  who  afterwards  marries.  72 
Of  slaves,  when  will  be  considered 
as  property  of  husband,  [See  Hus 
band.] 

"  "  Though  the  act  of  North 
Carolina  of  1806,  requires  that  it 
should  be  by  deed  proved  and  regis 
tered,  yet,  where  the  gift  was  by 
parol,  and  the  donee  had  possession 
and  claimed  the  property  as  his 
own,  by  virtue  of  the  gift  more  than 
three  years,  held  that  the  title  was 


460 


INDEX. 


thereby  vested  in  him  by  the  act 
of  limitation,  and  would  vest  in  a 
purchaser  from  him.  74 

And  grants  voluntary,  [See  Note 
at  foot  of  page]  60. 

[See  Possession,  Remainder.} 

GOOD,  Consideration, 

deed  founded  on,  [See  Gifts.] 

GRAND-Children,   [See  Devise.] 

GRANTS, 

and  gifts  voluntary,  [See  Note  to 
page]  60. 

grantor,  [See  Emancipation.] 

GROUND, 

for  redhibition,    [See    Warranty.] 

GUARDIAN,  [See  Infant.} 

HABIT, 

of  running  away,  [See  Warranty.} 
of  stealing,  [i£».] 

HARBORING  Slaves. 

statutes  respecting,  [See  Note.]  442 
an  action  on  the  case  will  lie  for.  " 
A  runaway  slave,  must  be  secret 
and  fraudulent  to  incur  the  penalty 
under  4  sec.  of  act  of  1791  of  North 
Carolina.  443 

Action  will  not  lie  in  Tennessee,  if 
defendant  claims  property  in  the 
slave,  and  acts  upon  that  ground 
and  not  with  a  view  of  subtracting 
profits  from  the  owner,  or  from  a 
desire  to  meddle  with  property  to 
which  he  himself  has  no  colorable 
claim.  446 

With  motives  not  criminal,  the  per 
son  in  possession  without  right  or 
title  is  liable  to  damages  and  ex 
penses  incurred  by  the  owner  in  re- 
covering  the  slave.  446 
A  slave  emloyed  by  the  captain  on 
board  a  steamboat  without  his  mas 
ter's  consent,  was  pursued  by  the 
master  and  accidentally  drowned, 
the  owners  of  the  boat  suffering 
him  to  be  so  employed,  or  not  pre 
venting  it,  are  responsible.  447 
[See  Liabilities  to  Master.] 

HEALTH, 

misrepresentation  of,  [See  War 
ranty.} 

HEARSAY-Evidence,    [See  Freedom.] 

HEIRS,  [See  Detinue,  Remainder.] 

HIRE,  Claim  for,    [See  Hiring.} 
Loss  of,  [iby] 


HiRED-Slave, 

death  of,  [See  Hiring.] 

HIRER,  Infant,  [See  Emancipation.} 

HIRING  of  Slaves. 

[See  Nott,\  152 

If  a  slave  hired  by  the  year  becomes 
sick  or  runs  away,  the  hirer  must 
lose  the  hire  :  but  if  the  slave  dies 
without  his  fault,  then  the  owner 
must  lose  from  the  death,  152 

The  hirer  is  discharged  from  his 
covenant  to  return  the  slave  at  the 
end  of  year,  if  the  slave  dies  before 
the  time.  153 

Contra  for  a  specified  time,  where 
the  slave  dies  before  the  time.  155 
Same,  where  in  a  bond  to  restore 
slave  on  the  rendition  of  a  decree, 
and  he  runs  away,  154 

Same,  where  slave  is  lost  without 
fault  of  hirer.  155 

The  hirer  is  chargeable  with  phy 
sician's  bill,  unless  there  is  an  ex 
press  agreement  to  contrary.  156 
Purchaser  of  slaves  with  legal  no 
tice  of  a  better  title  is  liable  to  pay 
interest  on  the  hires  he  receives 
from  others.  156 

The  hirer  is  not  entitled  to  abate 
ment  for  sickness.  156 
As  to  limitation  of  hire.  157 
Where  tenant  for  life  of  slaves  dies 
after  1st  March,  his  lessee  will  hold 
them  for  remainder  of  the  year  : 
parol  evidence  of  the  declarations 
of  tenant's  for  life  hiring  them,  is 
competent  against  the  claims  of 
those  in  remainder.  157 
The  plantation  slaves  of  a  tenant 
for  life  who  dies  after  1st  March, 
must  remain  to  finish  the  crop  with 
out  hire  to  the  remainder  man.  158 
Wages  must  be  apportioned  where 
a  slave  was  hired  for  and  dies  within 
the  year.  159 
Refusal  by  a  person  without  color 
of  title  to  restore  slaves  upon  the 
demand  of  the  true  owner,  is  such 
a  fraud  as  brings  the  case  within 
the  provisions  of  the  Habeas-Corpus 
act.  160 
Of  interest  on  the  hire  of  slaves.  161 
The  defendant  cannot  resist  plain 
tiff's  claim  for  his  slave,  and  the 


INDEX. 


461 


hire  on  the  ground  that  there  was  no 
demand.  161 

Where  a  legatee  is  in  possession  of 
a  slave  on  the  death  of  a  testator, 
the  executor  can  recover  the  hire 
from  the  granting  of  letters  testa 
mentary.  161 
A  person  who  hires  slaves  and  en 
gages  to  return  them  in  a  particular 
manner,  is  responsible  for  their  loss, 
if  sent  in  a  different  manner.  163 
Slaves  and  not  the  master,  are  sul> 
ject  to  indictment  for  hiring  out 
their  own  time,  under  the  act  of 
North  Carolina  of  1794.  163 
When  a  special  demand  of  hirer 
necessary.  164 
[See  Remainder,  Sale.] 

HISPANIOLA,  [See  Prescription.] 

HISTORY, 

And  origin  of  slavery.  8 

HoMiNE-Replegiando, 

This  writ  will  not  lie,  after  the 
granting  of  a  certificate  by  a  magis 
trate  for  the  removal  of  the  slave  by 
his  master.  384 

HUSBAND  , Debts  of,  [See  Frauds.] 
Dying  in  life  time  of  wife,  [See  De 
vise. 

House  of,  slaves  sent  with  daughter 
to,  [See  Daughter.] 
Slaves  of  a  female  vest  in,  on  the 
marriage,  and  though  she  survive 
him,  her  right  to  them  is  not  reviv 
ed.  39 
[See  Dower,  Remainder,  Wife.] 

IDIOCY, 

of  a  slave,  [See   Warranty.] 

IGNORANCE, 

by  vendor  of  defect  in  slave,    [See 
Warranty.] 

ILLEGAL, 

importation,    [See    Emancipation.] 

IMPERFECT, 

right  to  slave,  [See  Emancipation.] 

IMPLICATION, 

Emancipation  by,  [See  Emancipa 
tion.] 

IMPLIED  Warranty,  [See    Warranty.] 

IMPORTATION, 

of  slaves,  [See  Emancipation] 

IMPRISONMENT, 

of  fugitive  slaves,  [See  Fugitive.] 
false,  [See  Freedom.] 


INADMISSIBILITV, 

of  parol  evidence,   [See   Emanci 
pation.] 

INCAPACITY  of  slaves, 

a  slave  can  make  no  contract.  190 
Cannot  take  by  descent  or  pur 
chase.  191 
Cannot  hold  property  by  devise.  191 
In  S.  Carolina,  a  free  person  of 
color  is  an  incompetent  witness  in 
any  case,  even  when  the  parties  are 
of  his  own  class.  193 
Contra  in  Louisiana.  195 
A  free  negro  is  incompetent  in 
any  case  as  a  witness  where  the 
rights  of  white  persons  are  con-» 
cerned.  194.  197. 
A  free  man  of  color,  may  require  a 
white  man  to  give  security  to  keep 
the  peace.  195 
Presumption  of  slavery,  arising 
from  color,  is  confined  to  blacks.  195 
A  free  black  is  a  competent  witness 
to  prove  facts  which  happened 
while  he  was  a  slave.  196 
A  slave  manumitted  by  an  infant 
may  be  a  witness,  although  the  gift 
of  manumission  may  be  revoked  on 
his  coming  of  age.  196 
A  slave  cannot  be  a  party  to  a  suit 
for  any  other  purpose  than  to  assert 
his  freedom,  he  cannot  contest  the 
title  of  the  person  claiming  him  as 
his  slave.  197 
A  statu  liber  has  no  action  for  relief 
for  ill  treatment.  198 
The  marriage  of  a  slave  has  its  civil 
effects  upon  his  emancipation,  but 
none  before.  199 
Marriage  where  one  of  the  parties 
is  a  slave  is  legal,  and  if  the  mother 
be  free  the  children  are  so.  199 

INCREASE  OF  SLAVES, 

The  owner  of  a  female  slave  may 
give  her  to  one  of  his  children,  and 
her  future  increase  to  another.  28 
The  words  "  future  increase"  in 
the  bequest  of  female  slaves,  extend 
only  to  embrace  such  increase  as 
are  born  after  the  bequest  made, 
and  cannot  by  construction  be  ex 
tended  to  embrace  prior  born  in 
crease.  29 
Extent  of  warranty  as  to  132 


462 


INDEX, 


Born  during  the  life  of  the  legatee 
for  life,  belong  to  the  ulierier  lega 
tee.  23 
A  contrary  rule  exists  as  to  live 
stock.  24 
Born  during  the  life  estate  belong  to 
legatee  for  life.  25 
The  word  "  increase"  in  a  will 
should  generally  be  restricted  to  the 
future  increase  of  the  slave.  27 
And  also  is  ambiguous  :  if  it  cannot 
be  ascertained  by  the  whole  wil 
taken  together,  it  may  be  explainec 
by  parol  testimony.  28,  29 
INCURABLE  DISEASE,  [See  Warranty. 

Malady,  {ib.J 

INDEMNIFICATION    from    Sheriff,    [See 

Fugitive. 

INDENTURE  OF  SERVICE,  [See  Emanci 
pation. 
INDIAN  ANCESTORS,  descent  from,  [See 

Judgment.] 
INDIANS, 

Claimed  as  slaves,  [See  Freedom.] 
Some  in  Louisiana,  slaves.  12 

Issue  of  Indian  woman  is  free.  18 
Native,  though  slaves,  brought 
into  Virginia,  cannot  be  held  as 
slaves.  18 

Cannot  be  made  slaves  in  Virginia 
since  1691.  19 

Are  presumed  free.  19 

Presumption  of  their  freedom  may 
be  rebutted.  19 

"  "  "  may 

be  supported  by  facts.  20 

Were  held  in  slavery  in  New  Jer 
sey.  20 
INDIANA, 

Constitution    of,    prohibits    slave 
ry.  352 
INDICTMENT, 

When  master  not  liable   to,    [See 
Hiring,  Liabilities  to  master.] 
For   killing   a  negro,   [See  Liabi 
lities  to  master  and  others.] 
For  the   murder  of  a  slave,  [See 
Crimes,  Liabilities  to  master.] 
Variance    in,   [See    Liabilities   to 
master.] 

[See  Hiring,  Stealing.] 
INDICTABLE  OFFENCE, 

[See  Kentucky,  Liabilities  t9  mas 
ter.] 


INFANT, 

In  Spain,  a  donation  to,  of  slaves 
delivered  to  the  donees  father  is  ir 
revocable,  although  he  does  not  for 
mally  accept  the  gift.  51 
Title  to  a  slave  in  Tennessee,  will 
vest  in,   where  he   or  his  guardian 
holds  adverse  possession  for  three 
years.                                              83 
Hirer,  [See  Emancipation.] 
Daughter,  [See  Possession.] 
Revocation  of  manumission  by,  [See 
Incapacity.] 
INFORMAL, 

Emancipation,  [See  Emancipation.] 
INJURIES, 

[See  Liabilities  to  master.] 
INSPECTION, 

[See  Mulatto,  White  Persons.] 
INTENTION, 

To  defraud,  [See  Possession.] 
Of  Testator,  [See  Wills.] 
INTEREST,  [See  Hiring.] 
INTERFERENCE, 

Legislative    justification    of,    [See 
Emancipation.] 

Interposition   of  a  Court  of  Chan 
cery,  [See  Recovery.] 
INTRODUCTION 

Of  slaves  from  mother  country.     9 

[SSUE   OF  SLAVES, 

Intent  to  give  freedom  to,  will  con 
trol.  32 
Entitled  to  liberty  at  a  future  day, 
if  born  before  the  day,  are  slaves.  32 
The   same  principle  is  adopted  in 
Kentucky.                                   33 
Of  white  woman  with  a  slave,  [See 
White  woman.] 
JOINT  action,  [See  Freedom.] 

Owners,  manumission  by  two  of 
three,  [See  Emancipation.] 

UDGMENT, 

Creditor,  [See  Possession.] 
Of  freedom  in  favor  of  the  mother 
is  conclusive  evidence  of  the  free 
dom  of  the  child  born  after  judg 
ment.  4H 
In  favor  of  the  maternal  aunt  on 
account  of  her  descent  from  Indian 
ancestors,  may  be  received  in  evi 
dence  in  a  suit  for  freedom,  to  shew 
the  prevailing  reputation  of  the  ex 
istence  of  the  right  claimed,  413 


INDEX. 


463 


Of  acquittal,  [See  Crimes.] 
Record,  [See  Freedom.] 

JURY,  trial  by,  [See  Crimes.] 

JUSTICE,  of  the  peace,  [ib.] 

JUSTIFICATION, 

of  an  action  of  Trespass,  [See  Li 
abilities  to  master.] 

KENTUCKY, 

Paroi  gifts  of  slaves  prior  to  and 
under  act  of  1787.  67 

Rule,  as  to  unconditional  sale  of 
slaves  where  possession  remains  i 
with  vendor.  90 

A  slave  brought  in,  contrary  to  the 
statute,  is  an  indictable  offence.  384 
[See  Emancipation,  Fugitive,  Is 
sue,  Possession,  Warranty.] 

KIDNAPPING  SLAVES, 
[See  Stealing.] 

KILLING  SLAVES, 

Liabilities  of  others  to  the  master 
for,  [See  Liabilities  of  master  and 
others,  and  to  master.] 

KNOWLEDGE  OF  FACTS,  [See  Warran 
ty.] 

LABOR, 

and  services.  Action  of  trespass  for, 
[See  Damages  ] 

LAND, 

issued  by  State  to  slave  for  military 
services,  [SeeLiabilities  of  master.] 

LAW, 

common — rules   as    to   remainder, 
[See  Remainder.] 
Remedy,  [See  Liabilities  to  mas 
ter.] 
Court  of,  [See  Emancipation.] 

LEAVE  of  absence,  [See  Fugitive.] 

LEGATEE, 

for  life,  of  slaves,  [See  Hiring,  In 
crease.] 

LEGISLATIVE  interference, 

justification  of,  [See  Emancipation.] 

LENDER, 

when  divested  of  title  to  slaves,  [See 
Possession.] 

LESSEE,  of  tenant,  [See  Hiring.] 

LIABILITIES  of  masters  and  others. 

Master  may  be  convicted  and  fr\ed 
for  maltreating  his  slave.  200 

The  Court  will  not  set  aside  a  ver 
dict  of  acquittal  of  a  defendant  vho 
killed  a  slave  upon  an  attempt  to 
arrest  him  on  suspicion  of  the  slave's 


having  committed  a  felony  and  at 
tempting  to  seize  a  gun  while  en 
deavoring  to  make  his  escape.  200 
To  excuse  a  trespass  for  acciden 
tally  killing  a  slave,  it  must  appear 
to  have  been  done  without  the  fault 
of  the  person  killing.  201 

The  proper  rule  of  damages,  is  the 
value  of  the  slave  at  the  the  time  of 
his  death  to  master.  202 

A  slave  cannot  be  killed  while  fly 
ing  from  his  pursuers,  by  the  statute 
of  1740,  or  at  common  law  ;  and  the 
owner  will  be  compensated  for  his 
loss  if  killed.  202 

The  penalty  of  killing  a  slave,  acts 
upon  the  person,  not  on  the  of 
fence.  203 
An  indictment  under  the  act  for  kill 
ing  a  negro,  should  specify  the  cri 
minal  nature  and  degree  of  offence, 
and  the  facts  and  circumstances 
rendering  defendant  guilty.  203 
LIABILITIES  of  Master. 

A  physician  cannot  sustain  an  action 
against — for  curing  the  slave  of  a 
disease,  without  his  knowledge,  un 
less  in  case  of  necessity.  225 
Or  during  his  absence.  225 
And  owner  is  not  liable  for  medical 
attendance  upon  a  hired  slave, 
given  at  request  of  hirer.  226 
Where  a  slave  was  accustomed  to 
deliver  to  a  tanner  raw  hides,  and 
receive  tanned  leather  in  return,  by 
directions  of  his  master,  he  is  re 
sponsible  to  tanner  for  the  difference 
in  their  value.  227 
A  master  may  constitute  his  slave 
his  agent.  228 
The  owner  is  entitled  to  the  land 
warrant  issued  by  the  state  to  slave 
for  military  services  rendered  by 
the  slave  in  the  war  of  the  revolu 
tion.  229 
The  master  is  not  liable  for  damages 
from  the  negligence  of  his  slave.  230 
Nor  for  injuries  caused  by  the 
slave's  negligent  conduct,  when  not 
acting  in  his  employment  and  under 
his  authority.  236 
Contra — in  Louisiana.  231 
But  generally,  he  is  not  liable  for 
the  acts  of  his  servants,  unless  done 


464 


INDEX. 


by  his  authority,  and  the  principal 
never,  for  the  criminal  acts  of  his 
mere  civil  agent.  232 

The  manumission  of  a  slave  is  an 
act  of  benevolence,  and  obligatory 
upon  the  master,  if  in  writing,  and 
does  not  rest  upon  the  principles  of 
a  contract  upon  consideration.  232 
A  court  of  Equity  cannot  enforce 
a  contract  between  master  and  slave 
if  the  slave  has  even  complied  with 
the  conditions  upon  which  his 
master  agreed  to  emancipate 
him.  233.  237 

In  North  Carolina,  an  owner  of  a 
slave  under  the  act  of  1797,  is  liable 
to  pay  on  his  conviction  of  a  capital 
charge,  the  costs  of  prosecution, 
prison,  and  execution  fees.  234 
And  is  liable  for  the  jail  fees  and 
other  costs,  having  due  notice  of  the 
criminal  charge.  235 

The  owner  may  be  civily  prosecu 
ted  for  damages  for  theft  of  slave, 
without  a  previous  criminal  prose 
cution.  234 
A  master  is  liable  for  trespass  com 
mitted  by  slave,  and  it  is  not  material 
whether  he  acted  by  his  direction 
and  sanction  or  not.  235 
LIABILITIES  to  Master,  by  others. 

Trespass  will  not  lie  by  master  for 
an  assault  and  battery  on  his  slave, 
unless  attended  by  a  loss  of  service, 
but  is  an  indictable  offence.  239 
Trespass  may  be  justified  where 
the  slave  was  at  an  unlawful  assem 
bly,  combining  to  rebel,  refused  to 
surrender,  and  resisted  by  force.  239  j 
And  an  assault  and  battery  commit-  j 
ted  upon  a  slave  without  cause  or 
provocation  is  an  indictable  of 
fence.  239 
Trespass  may  be  maintained  by 
the  master  for  the  battery  of  his 
slave.  243 
An  assault  with  an  attempt  to  mur 
der  a  slave  is  indictable.  244 
The  master  is  not  liable  to  an  indict 
ment  for  a  battery  upon  a  slave 
hired  by  him.  244 
The  statute  penalty  for  harboring 
slaves  is  cumulative  and  does  not  de-  ! 
stroy  the  common  law  remedy.  248  j 


Testimony  cannot  be  offered  in  mi* 
tigation  of  damages  in  justification 
of  an  action  of  trespass,  that  plain 
tiff  had  given  defendant  permission 
to  visit  his  slaves  and  chastise  any 
of  them  found  acting  improper 
ly.  248 
Where  a  mariner  slave  is  illegally 
discharged  from  on  board  a  ship 
abroad,  his  wages  can  be  recovered 
by  his  master  up  to  the  time  when 
he  might  have  returned  to  the  U. 
States.  233 
And  that  the  owner  of  a  slave  may 
maintain  a  suit  for  his  wages,  as  a 
mariner  on  board  a  coasting  ves 
sel.  262 
A  master  may  claim  the  benefit  of 
a  lawful  and  voluntary  engagement 
made  in  favor  of  his  slave  on  an 
equitable  consideration  by  a  person 
capable  of  contracting.  263 
A  civil  action  may  be  brought  by 
the  master  for  enticing  away  his 
slave,  notwithstanding  it  may  be  a 
felony  under  the  act.  264 
LIABILITIES  TO  MASTER, 

For  maiming,  killing,  or  murdering 
slaves. 

A  plaintiff  recovering  the  full  value 
of  his  slave  on  an  injury  done  by 
defendant,  upon  his  paying  the 
judgment,  slave  should  be  placed  in 
his  possession.  249 

A  variance  in  the  indictment  for 
the  murder  of  a  slave  from  the 
words  of  the  statute,  was  held  by 
the  court  to  be  immaterial.  249 
In  a  suit  for  killing  a  slave,  pre 
sumptive  evidence  supports  the 
verdict.  249 

The  murder  of  a  slave  under  the 
act  of  1821,  is  of  the  same  grade 
and  character  as  the  murder  of  a 
white  man  at  common  law,  and 
must  be  made  out  by  the  same 
kind  of  proof.  251 

In  an  action  for  damages  for  killing1 
a  slave,  plaintiff  may  be  permitted 
to  discontinue  that  part  of  the  suit 
which  charged  defendant  as  over 
seer,  with  gross  negligence  and 
and  mismanagement  of  his  planta 
tion  and  slaves.  251 


INDEX. 


465 


In  the  state  of  Mississippi,  murder  |  MAGISTRATE, 


may  be  committed  on  a  slave,  as 
on  a  freeman.  252 

The  court  declared  that  under  the 
act  of  9th  Feb.  1819,  a  slave 
was  a  pel-son  on  whom  the  offence 
of  stabbing  and  shooting  might  be 
committed,  and  that  the  act  was  in 
tended  to  protect  them  as  well  as 
free  persons  from  such  outrages.  254 
Slaying  a  slave  feloniously  without 
malice,  is  manslaughter,  and  sub 
jects  the  offender  to  punish 
ment.  555 

LiBER-Statu, 

[See  Emancipation,  Freedom,  Tn- 
capacity.'] 

LIBERTY,    bequest    of,    [Sec    Emanci 
pation.] 

[See  Issue.] 

LIFE,  tenant  for, 

[See  Hiring,  Remainder.] 

Time     of    wife,     husband     dying 

in,  [See  Devise.] 

LIMITATIONS,  statute  of. 

when  begins  to  run,  82 

[See  Gifts,  Hire,  Mortgage,  Pos 
session.] 

LOAN,  of  slaves, 

to  married  daughter,  [See  Frauds.] 
by    parol    agreement    and  posses 
sion,  [See  Possession.] 
under    and  within    the    statute    of 
fraud,  (See  Frauds.] 

LOANEE, 

of  slaves,  when  title  vests  in,  [See 
Possession,  Frauds.] 
Creditors  of,  [See  Possession.] 

LOANOR  of  slaves,  [See  Frauds.] 

LOANS,  bona  fide,  [ib.] 

Loss  of  hire,  [See  Hiring.] 
slaves,          [ib.] 

service,  [See  Liabilities  to  mas- 
ter.] 

LOUISIANA, 

Donation  of  slaves  in,  [See  Dona 
tion.] 

Deed  of  Emancipation  in,  [See 
Emancipation.] 

Rule  as  to  personal  property  re 
maining  in  possession  of  vendor, 
and  see  note.  91 

[See  Emancipation,  Freedom,  Fu 
gitive,  Mortgage,  Incapacity.] 
59 


aid    of,  to    prevent  transportation, 
[See  Emancipation.] 
MAINTAINANCE,  [See  Emancipation.] 

MAIMING  or  killing  slaves,  [See  Liabili* 
ties  to  master.] 

MALADY,  Incurable,  [See    Warranty.] 
Redhibitory,  [ib.] 

MALTREATMENT  of  slaves, 

[See  Liabilities  of  master  fy  others.] 

MANSLAUGHTER, 

[See  Liabilities  to  master.] 

MANUMISSION, 

qualified,  of  mothers,  children  born 
during,  are  born  slaves.  35 

Certificate,  registry  of,  [See  Eman 
cipation] 

Contract,  [ib.] 

Mode  of,  [ib.] 

Of  daughter  by  mother,  [See  Eman 
cipation] 

[See    Incapacity,    Liabilities    of 
Master.] 

MARRIAGE, 

Conviction  of,    [See   White    Per* 

sons.] 

Of  slave,  [See    Incapcity.] 

[See  Gifts,  Husband,  Remainder.} 

MARRIED  DAUGHTER, 

loan  of  slaves  to,  [See  Frauds.] 

MARINER  slave, 

wages  of,  [See  Liabilities  to  mas* 
ter.] 

MARYLAND, 

slaves  brought  into,  for  sale  or  to  re 
side,  [See  Emancipation.] 
Who      cannot     be       emancipated 
in,  [See  Emancipation] 
[See  White  Woman] 

MASSACHUSETTS, 

A  slave  voluntarily  brought  into,  by 
owner,  is  free.J  357 

[See  Emancipation* 

MASTER, 

liabilities  for  the  acts  of  slaves,  [See 

Liabilities  of  master.] 

"  maltreating  slaves,  [ib.] 

Rights     of,    when    effected,    [See 

Emancipation.] 

Liabilities  for  torts  and  crimes  com 
mitted    by    slave,     [See 
Liabilities  of  master.] 
of  others    to,   [See    Liabilities   to 
Master.] 


466 


INDEX. 


MATERNAL-AUNT,  [See  Judgment.] 
MATRIMONY, 

incapacity  of  slaves  to  contract, 
[See  Incapacity.} 

MEDICAL  attendance, 

[See  Liabilities  of  Master.} 

MENTAL  defect,  [See  Warranty.} 

MILITARY  service, 

of  slave,  [See  Liabilities  of  Mas 
ter.} 

MINORIS,  Quanti, 

action  of,  [See  Warranty.} 

MiNORS-rights,  [See  Emancipation.} 

MISREPRESENTATION, 

of  health  of  slave,  [See  Warranty.] 

MISSISSIPPI,  [See  Liabilities  to  Master] 

MODE  and  effect, 

of  emancipation,  [See  Emancipa 
tion.] 

MONEY, 

compensation  in,  on  Division,  [See 
Division] 

MORAL  qualities,  [Seo  Warranty.] 

MoRANni-Animo,  [See  Emancipation.] 

MORTGAGE, 

of  slaves,  made  out  of  Louisiana, 
will  not  effect  a  subsequent  bona 
Jide  sale  by  the  mortgager,  unless 
it  be  recorded.  164 

Whether  a  bill  of  sale,  absolute  on 
its  face,  is  a  mortgage  or  not,  de 
pends  on   the  circumstances  of  the 
case — and  an  absolute   bill  of  sale 
and  defeasance  are  to  be  taken  to 
gether.  165 
Effect  of  sale  by  mortgagor.       166  j 
The  children  of  a  mortgaged  female  \ 
slave,  born  after  execution,  are  as  I 
much  liable  to  the  demand  of  the  I 
mortgagee  as  the  mother.  167  j 
Possession  of  a  mortgagee  or  mort 
gagor  of  a  slave  when  not  adverse, 
is  not  within  the  statute  of  Limita-  j 
tions  ;  but  the  statute  will  run  when  < 
the  possession  becomes  adverse  :  a  | 
possession   continued   20  years    is 
presumed  adverse  from  the  begin 
ning  :  facts  may  intervene  extend 
ing  the  right  of  redemption  beyond 
20  years.                                       171 
Parol   evidence  is   inadmissible  to 
prove  that  an   absolute  bill  of  sale 
of  a  slave  was  intended  for  a  mort 
gage.                                              174 


Contra.  175 

A  slave  pledged  to  secure  payment 
of  a  sum  borrowed,  pledgee  is  liable 
in  assumpsit  for  the  profits  of  the 
slave  beyond  the  interest  of  the  debt 
the  principal  being  paid.  175 

A  mortgagee  of  a  slave  may  main 
tain  trover,  after  the  condition  of 
the  mortgage  is  broken.  177 

Detinue  can  be  brought  by  the 
mortgagee  to  recover  personal  pro 
perty  mortgaged  after  the  time  for 
redemption  Jias  expired.  180 

The  mortgagee  of  an  unregistered 
mortgage  of  personal  property,  can-* 
•not  follow  the  mortgaged  goods  into 
the  hands  of  a  bona  Jide  vendee  of 
the  mortgagor.  180 

Mortgagee  or  hirer  of  slaves  bound 
to  supply  necessaries.  180 

MORTGAGEE,  )    ^      M 

MORTGAGOR,  )  L 

MOTHER, 

and  children— joint  action  by,  for 
freedom,  [See  Freedom] 
Manumission   by,  [See  Emancipa 
tion.}  . 

Attaining  30  years  of  age,  [ib.~\ 
[See  Mortage.] 

MOTIVES,  not  criminal,  [See  Harboring] 

MULLATTO, 

Is  one  having  a  visible  admixture 
of  Negro  blood.  4 

And  is  known  by  inspection.  5 
Admissibility  of,  as  a  witness.  196 

MURDER  of  slave, 

[See  Liabilities  to  master.] 

NATIVE  Indians,  [See  Indians.} 

NEGLIGENCE, 

master  not  liable  for,  [See  Liabili 
ties  of  master.] 

NEGROES,  a  bill  of  sale  for,  [See  Gifts.] 
Are  presumed  to  be  slaves.  5 

Attempt  by,  to  ravish  a  white  wo 
man,  [See  Crimes.} 
Born  out  of  state,  [See  Emancipa 
tion.} 

Imported  from  Madagascar  may  be 
slaves.  11 

Killing,  indictment  for,  [See  Liabi 
lities  of  master  and  others.] 
Moors  and  Mulatoes  are  slaves.    3 
Sale  of,  when  hired  out,  [See  Hi 
ring] 


INDEX. 


467 


Stolen,  bona-fide  vendee  of,  [See 

Stealing,  Vendee.] 

Trading  with,  [See  Trading.] 

Tribunal   for    the    trial    of,    [See 

Crimes.] 
NEIGHBORHOOD, 

reputation  of,  {See  Emancipation.] 
NEW-JERSEY, 

Indians  in,  [See  Indians.] 
NEW-YORK, 

[See  Devisee,  Dower ,  Emancipa 
tion,  Fugitive.] 

NOMINAL  damages,  [See  Damages.] 
NORTH  Carolina, 

[See    Crimes,     Gifts,    Harboring, 

Hiring,     Liabilities     of    Muster, 

Possession.] 
NoRTH-Western  Territory, 

[See  Emancipation.] 
NUNCUPATIVE  Will, 

[See  Emancipation.'] 
OFFENCES,  Capital,  [See  Crimes.] 

Indictable,  [See  Kentucky.] 

Trial  of  slaves  and  persons  of  color, 

for,  [See  Crimes.] 

OFFSPRING,  [See  Freedom,  Mortgage.] 
OHIO, 

constitution  of,prohibits  slavery.  354 

[See  Emancipation^ 
OMISSION, 

to  disclose  facts,  [See  Warranty.] 
ONus-Probandi,  [See  Freedom.] 
ORDINANCE  of  Congress,  1787, 

[See  Ejnancipation.] 
ORIGIN  and  history  of  slavery, 

[See  Slavery.] 
OTHERS, 

liabilities    to    master    for    abusing 

his  slave,  [See  Liabilities  to  Mas 
ter.} 

Assaulting,  beating,    or   harboring 

him,  [See  ib.] 

Maiming  or  killing  him,  [ib.] 
OVERSEERS, 

of  a  town,   manumission   by,  [See 

Emancipation.] 
OWNERS, 

contract    to    manumit  after  death 

of,  [See  Emancipation.] 

Declaration  or  promise  by,  [See  ib., 

Freedom.] 

Demand  by,  [See  Hire.] 

Devise     of    property    to    a    slave 

by,  [See  Emancipation.] 


Expenses  incurred  by, in  recovering 
slave,  [See  Harboring.] 
Joint,  [See  Emancipation.] 
Of  a  female  slave,  [See  Increase.] 
Of  a  stolen  negoro,  [See  Vendee^ 
Stealing.] 

Of  slaves,  may  grant  freedom  to 
their  future  increase.  38 

Removing  with  his  family  from 
Kentucky  to  Ohio,  [See  Emancipa 
tion] 

Right  to  emancipate,  [See  Eman 
cipation,  Liabilities  of  master.] 

OWNERSHIP, 

presumptive  evidence  of,  [See  Pos 
session.] 

PARENT, 

The  mere  circumstance  of  being 
indebted  at  the  time  of  making 
an  advancement  to  a  child,  does  not 
imply  an  intention  in  the  person 
conveying,  in  consideration  of  na 
tural  love  and  affection,  to  defraud 
his  creditors.  71 

PAROL-agreement, 

loan  of  slaves  by,  [See  Possession.] 
Evidence,  [See  Emancipation,  Hi 
ring,  Mortgage,  Warranty.] 
Gifts,  [See  Gifts.] 
Sale,  [See  Sa/g.] 
Testimony,  [See  Increase,  Sale.~] 

PARTIES  to  a  suit, 

Incapacity  of  slaves  to  be,  [See 
Incapacity.] 

PARTI  AL-payment, 

[See  Emancipation.] 

PARTUS  sequitur  ventrem,  3 

rule  of,  universally  followed.         34 

PAYMENT- partial, 

[See  Emancipation.] 

PAUPER,  counsel  for,  [See  Freedom.] 

PEACE, 

security  to  keep,  [See  Incapacity.] 

PEACEABLE-possesssion, 

[See  Possession.] 

PEDIGREE,  [See  Freedom.] 

PENALTIES, 

[See  Liabilities  of  master  and 
others.] 

PENDENTE-Hte, 

purchase   of  a  slave,    [See    War 
ranty.] 
PENNSYLVANIA, 

[See  Emancipation,  Freedom.] 


468 


INDEX. 


PfiRsoNAL-Estate, 

slaves  are  considered  as.  2.  37 

"  included  in  the  term  of,  in 
wills  and  contracts,  and  are  in  every 
respect,  except  as  to  descent  and 
last  wills,  personalty.  40 

Property,  [See  Property.] 

PERSONALTY, 

[See  Personal  Estate.] 

PERSONS  of  color,  presumed  slaves.       5 
"       free,    trial    of,    [See 
Crimes.] 
White,  [See  White  Persons.] 

PETITIONS  for  freedom, 
[See  Emancipation.] 

PHYSICIAN, 

[See  Hiring ,  Liabilities  cf  master.] 

PLEAS, 

[See  Prescription,  Warranty.] 

POLICY, 

considerations  of.  [See  Emancipa 
tion.] 

POSSESSION, 

Where  the  vendee  suffers  the  ven 
dor  to  retain,  and  he  sells  and  deli 
vers  to  a  second  vendee,  the  latter 
will  hold  in  preference  to  the 
first.  49 

Where  an  infant  daughter  held  as 
purchaser  for  a  valuable  considera 
tion,  and  lives  with  her  father  and 
exercises  acts  of  ownership  over 
the  slave,  his  creditors  cannot  dis 
turb  her  possession.  50 
If  a  slave  sold  remains  in  the  ven 
dor,  he  is  liable  to  be  seized  for 
his  debts.  54 
And  whether  he  remains  with  ven- 
dor  or  not,  is  matter  of  fact  for  a 
j»rv-  55 
Where  the  vendee  remains  in,  un 
der  another  title  than  that  of  the 
sale,  the  judgment  creditors  of  the 
Tender  cannot  seize  the  slaves  under 
an  execution  against  him.  55 
A  gift  of  a  slave,  accompanied  with 
actual,  vests  in  the  donee  an  abso 
lute  property,  unless  it  be  done 
with  an  intention  to  defraud.  73 
Delivery  of,  passes  title,  in  North 
Carolina,  notwithstanding  act  of 
1819.  64 
A  plaintiff  may  recover  in  Detinue 
where  he  has  held  five  years  peace- , 


ably,  which  constitutes  a  title  in 
Virginia,  and  may  regain  if  lost — 
even  against  the  former  owner.  77 
The  same  rule  is  adopted  in  Ken 
tucky.  77 
Held  that  five  years  peaceable  and 
uninterrupted,  in  the  loanee,  before 
or  since  the  act  to  prevent  frauds 
and  perjuries,  and  without  demand 
on  the  part  of  the  lender,  are  con 
sidered  as  the  absolute  property  of 
the  loanee,  as  to  creditors  and  pur 
chasers  under  him.  78 
Five  years  peaceable,  gives  title, 
which  if  lost,  may  be  regained.  79 
And  even  against  the  former  own 
er.  79 
And  the  same  principle,  in  the 
case  of  an  unrecorded  conditional 
sale.  80 
And  the  rights  of  the  creditors  of 
loanee  will  be  protected.  79 
Lost,  after  being  held  for  more  than 
twenty  years  peaceably,  and  ob 
tained  by  one,  who  claimed  title, 
held  that  plaintiffs  possession  was 
conclusive  evidence  of  property.  80 
Twenty  years  by  distributee,  not 
sufficient  to  infer  an  assent  by  admi 
nistrator.  81 
Five  years  peaceable,  of  slaves, 
under  a  loan  by  parol  agreement, 
vests  the  title  in  loanee,  subject  to 
his  creditors,  and  which  cannot  be 
divested  by  returning  them  after 
the  expiration  of  the  above  time.  94 
Of  slaves — rule  as  to  who  shall  be 
considered  in — where  the  use  en 
joyed  in  common.  90 
Personal  property  remaining  in 
vendors,  is  presumptive  evidence 
of  ownership  which  may  be  rebut 
ted,  but  is  no  evidence  of  fraud 
per  set  [and  see  note.]  91 
It  is  for  the  jury  to  say  whether  it 
was  made  to  hinder  or  delay  credi 
tors.  93 
Adverse,  sufficient  to  bar  an  action, 
vests  an  absolute  right  of  proper* 
ty.  83 
Of  infant,  by  himself  or  guardian.  83 
Must  be  adverse,  or  the  statute  is  no 
protection.  82 
Of  seller,  [See  Hiring.] 


INDEX. 


4  69 


POSSESSOR, 

Acknowledgment  by,  [See  Frauds.] 
[See  Property.] 

POWER  of  State, 

to  change  condition  of  persons,  [See 
Emancipation.} 

PRESCRIPTION,  Of  title  to  slaves  by. 

If  a  slave  be  claimed  by — an  exa 
mination  of  the  question  must  be 
according  to  the  laws  of  the  country 
in  which  he  was  thus  acquired.  95 
Must  be  pleaded  by  a  party  who 
relies  on — or  it  will  not  be  supplied 
ex  officio,  by  the  court.  100 

Time  requisite,  [See  Freedom,.} 
Ts  interrupted  by  an  action  in  which 
the  plaintiff*  is  nonsuited.  102 

Is  never  pleadable  to  a  claim  of  free 
dom.  101 
A  slave  who  enjoyed  her  freedom 
in  Hispaniola,  may  reckon  that 
time,  in  establishing  her  right 
by.  103 
In  redhibitory  actions,  [See  War 
ranty.] 

PRESUMPTION,  of  freedom,  [See  Indians] 
Of  slavery,  [See  Freedom,  Incapa 
city.] 

PRESUMPTIVE  Evidence,  [See  Liabili 
ties  to  master.] 

Of  ownership  in  vendor,  [See  Pos 
session.] 

PRICE,  action  for,  [See  Warranty.] 

Causes  for  reduction  in,  [See  \Var- 
ranty.] 

PRINCIPAL,  [See  Sale.] 

PROBANDI,  Onus,  [See  Freedom.} 

PROFITS, 

of  doviscd  slaves,  [See  Remainder.} 

PROPERTY, 

slaves  considered  as  real  and  per 
sonal.  36.  37 
And  cannot  acquire.  6 
Personal,  where  a  vendor  of,  deli 
vers  to  vendee  upon  condition,  with 
a  stipulation  that  the  right  of,  is  to 
renrciin  in  vendor  till  payment,  a 
sale  by  vendee  without  performing 
the  same  conveys  no  title.  70 
Personal,  three  years  adverse  pos 
session  of  a  slave  in  Tennessee 
vests  right  of,  in  possessor.  76 
[See  Liabilities  to  master^  Posses 
sion.  Warranty.] 


PROTECTION, 

and  forthcoming   of  a  slave,  [See 

Freedom.] 

of  donors,  [See  Gifts.] 

PUNISHMENT, 

[See  Crimes} 

PURCHASE, 

incapacity  of  slaves  to  take  by,  [See 

Incapacity.} 

Where  slavery  is  not  tolerated,  [See 

Emancipation.} 

Of  a  slave  pendente  lite,  [See  ib.] 

PURCHASERS, 

[See  Emancipation,  Gifts,  Hiring, 
Warranty.] 

QUALIFIED  Manumission, 

[See  Manumission.] 

QUALITIES,  moral,  [See  Warranty.] 

QuANTi-minoris,  action  of,  [ib.] 

RAVISH, 

attempt  of  a  negro  to,  [See  Crimes.] 

REAL  Estate, 

slaves  are  considered  as.  2.  36 
Though  for  some  purposes  slaves 
are  declared  by  statute  to  be — they 
are  nevertheless  personal,  and  liable 
as  chattels  to  the  payment  of 
debts.  37 

Held  in  South  Carolina,  that  since 
the  act  of  1800,  a  will  that  does  not 
pass  lands,  will  not  pass  a  slave.  59 
[See  Wills.] 

RECISSION  of  a  sale,  [See  Warranty.] 

RECLAIM  of  a  slave, 

[See  Emancipation.] 

RECORD-Judgment,  [See  Freedom.} 

RECORDED  will,  validity  of,  [ib.] 

RECOVERY  of  slaves,  action  for.  415 
An  action  of  detinue  may  be  main 
tained  without  naming  the  ne- 
gro.  415 

Detinue  does  not  lie  for  a  slave  who 
died  before  suit  brought.  415 

A  complainant  must  show  a  clear 
title  to  authorise  the  interposition  of 
a  Court  of  Chancery  to  restrain  a 
sale  of  a  slave  levied  upon.  416 
In  an  action  of  detinue  for  slaves, 
damages  are  several.  417 

One  joint  tenant,  cannot  maintain 
an  action  against  his  co-tenant.  417 
In  detinue  for  slaves,  if  the  slave 
dies  pendente  lite,  what  damages 
are  recoverable.  418 


470 


INDEX. 


Of  dower,    bar  for,   [See  Devise.] 
[See  Damages,  Detinue.] 

REDHIBITORY  actions, 

ground  for,  [See  Warranty.] 
Case,  [ib.] 

Defects,  [ib.] 

Malady,  [ib.] 

Vices,  [ib.] 

REDEMPTION,  right  of,  [See  Mortgage. J 

REDUCTION,  in  the  price  of 
a  slave,  [See  Warranty.] 

REFUSAL,  to  restore  slaves,  [See  Hire.] 
By  slave  to  surrender,  See  Liabili 
ties.] 

REGISTRY, 

Of    certificates     of     manumission, 
[See  Emancipation.] 
Of  slaves.  [ib.] 

REMAINDER, 

a  husband  dying  in  the  lifetime  ofthe 
wife,  cannot  devise  away  slaves  to 
which  she  is  entitled  in  remainder 
or  reversion,  though  he  might  in  his 
lifetime  sell  his  interest  for  a  valu 
able  consideration.  57 
The  court  will,  in  its  discretion, 
compel  a  tenant  for  life  to  give  se 
curity  to  the  remainder  man.  184 
A  devise  to  take  effect  after  the 
death  of  the  devisor  is  good,  [See 
Note.]  184 
Slaves  devised  to  a  child  when  he  j 
shall  arrive  at  age,  the  profits  of,  if  j 
not  otherwise  disposed  of,  go  to  his 
support.  185.  319 
A  person  taking  possession  of  slaves 
must  account  for  the  hire  or  pro 
fits.  185 
If  a  feme  sole  entitled  to  slaves  in 
remainder  or  reversion,  marries  be 
fore  the  determination  ofthe  parti 
cular  estate,  the  right  belongs  to 
the  survivor  of  them.  185 
Where  the  devise  was  to  a  daughter 
for  life  and  to  her  heirs,  and  for 
want  of  such  heirs,  a  limitation  over 
to  the  other  children  of  testator,  is 
not  too  remote.  186 
Or  where  the  devise  was  to  W.  and 
his  heirs  forever,  but  if  he  died  with 
out  issue,  then  to  C.  is  the  same.  189 
Same  in  case  of  a  gift  where  the 
grantor  dies  without  issue.  188 
A  condition  in  the  sale  of  a  slave, 


that  if  purchaser  dies  without  issue 
it  shall  revert  or  pass  to  a  third 
party  is  void,  and  the  property  vests 
in  the  first  taker.  187 

Where  the  first  taker  has  an  abso 
lute  estate  in  the  property  devised, 
then  a  limitation  over  is  void.  188 
The  rule  of  common  law  will  pre 
vail.  189 
The  value  of  the  slave  at  the  time 
when  demanded  by  the  remainder 
claimants,  after  the  termination  of 
the  life  estate,  with  interest  and 
costs  should  be  recovered  by  the 
vendee,  against  the  vendor,  in  a 
covenant  of  title.  190 
an,  [See  Hiring.] 

REMOVAL  of  slave, 

[See  Emancipation,  Homine-Rc- 
plegiando.] 

RENUNCIATION  of  will,  [See  Devise.] 

REPRESENTATIVES  of  husband, 
[See  Dower.] 

REPUTATION  of  neighborhood, 
[See  Freedom.] 

RESERVATION, 

[See  Increase,  Emancipation.] 

RESIDENCE, 

in  a  free  state,  [See  Emancipation.] 
Temporary,  abroad,  [ib.] 

RESPONSIBILITY, 

for  value  of  slave,  [See  Harboring.] 

REVERSION,  [See  Devise,  Remainder.] 

REVOCATION  of  manumission, 
[See  Incapacity.] 

RIGHTS, 

creditors  violation  of,  [See  Eman 
cipation.] 

Of  minor,  [ib.] 

Of  property,  [ib] 

Of  white  persons,  [See  Incapa 
city.] 

To  sue,  [See  Warranty.'] 
Redemption,  [See  Mortgage.] 
Renunciation  of,  [See   Emancipa 
tion.] 
Of  owner  to  emancipate,     [ib.] 

RULE, 

As  to  possession  of  slaves,  in  com 
mon,  [See  Possession.] 
As  to  partus  sequiter  ventrern,  [See 
Possession.] 

As  to  sale  of  slaves  in  Kentucky, 
[See  Kentucky,] 


INDEX. 


471 


As  to  sale  of  slaves  in   Louisiana, 

[See  Louisiana.] 

Of  common  law,  [See  Remainder.] 

Of   Damages,   [See  Liabilities   to 

master.] 

Of  evidence   in  suits  for  freedom, 

[See  Freedom.] 
RUNAWAY  Slaves, 

[See  Fugitives,    Warranty.} 
SALE, 

Action  to  rescind, — [See  War 
ranty.} 

Bjl]  Of — made  by  a  person  indebted, 
who  retains  possession  after  ex 
ecution  of  the  bill,  is  void  as  to 
the  interests  of  third  persons — 49 

Of  negroes  may  be  deemed  fraud 
ulent  from  other  circumstances 
than  vendors  continuing  in  pos 
session.  53 

[See  Mortgage.  Warranty.] 

By  a  broker — [See  Warranty.] 
"  Sheriff— [See  Fugitive.] 
"  Vendee  of  personal  property — 
[See  Property.} 

Conditional, — [See  Possession.] 

Of  negro  while  hired  to  another, 
transfers  the  possession  and  right 
of  property,  and  the  subsequent 
holding  by  the  person  who  had 
hired,  is  not  to  be  treated  as  the 
possession  of  the  seller.  68 

Of  a  fugitive  slave — [See  Fugitive.] 

Of  a  slave  entitled    to  freedom  in 

futuro.  [See  Warranty.] 
"  on  condition — [See  (Condition. 

Remainder.] 

"    with  Warranty — [See    War- 
anty.} 

Fictitious — [See  Gifts.} 

Parol,  not  void,  aud  the  exclusion 
of  parol  testimony  as  to  contracts 
of  this  description,  is  a  privilege 
which  the  parties  may  waive.  59 

"  of  slaves  in  North  Carolina,  ac 
companied  with  the  delivery  of 
possession,  is  valid  and  transfers 
the  title.  64 

Rule  as  to  remaining  in  possession 
of  vendor  in  Louisiana.  91 

Unconditional — Kentucky  rule  as 
to  remaining  in  possession  of 
vendor.  90 

When    unattended   with    any   real, 


fictitious,  or  conventional  de 
livery,  liable  to  be  attached  for 
vendor's  debt.  46 

Of  Slaves. 

Where  an  agent  to  purchase  a 
slave  takes  title  in  his  own  name 
without  disclosing  it,  and  subse 
quently  the  slave  comes  to  the 
possession  of  the  principal,  who 
tenders  the  price  which  the  agent 
did  not  then  receive  at  his  own 
request,  the  jury  may  infer  a 
subsequent  valid  sale  by  the  agent 
to  his  principal.  432 

Void,— [See  Warranty.] 
SANCTION. 

of  master,  slave  acting    by, — '[See 

Liabilities  of  master.] 
SECURITY 

to  keep  the  peace,  [See  Incapacity.} 
SELLER. 

Deceit  of, — [See  Warranty} 
Possession  of — [See  Hiring.} 
SERVICES  AND  LABOR 

Action  for —  [See  Damages.} 
Indenture  of — [See  Emancipation.] 
Loss  of,  by  master,  [See  Liabilities. 
Military — of  slave  ,  [ib.] 

SERVITUDE. 

temporary — [See  Emancipation.] 
SHERIFF — [See  Fugitive.] 
SICKNESS. 

Abatement  for — [See  Hiring.] 
SLAVERY. 

Damages  for  illegally  holding  in, — 

[See  Damages.] 

Origin  aud  history  of —  8 

Presumption    of — [See     Freedom. 

Incapacity.} 

Toleration  of — [See  Emancipation. 
SLAVES, 

Absolute   deed    of    sale    of,    [See 
Gifts.} 

Abusing    of,    [See    Liabilities    to 
master.] 

Acts  of,  [See  Liabilities  of  Mas 
ter.} 

Action  for,  [See  Detinue.] 
Adverse  possession  of,  [See  Infant, 
Possession.] 

Advertised,     profits    of,  [See    Re 
mainder} 

And  servants — harboring   of,   [See 
Liabilities  to  master.] 


472 


INDEX. 


Are  considered  human  beings  1 
Are  capable  of  volition.  2 

Are  considered  chattels.  2 

Arq     "     Personal  Estate.      2.  37 
Real  Estate.  2.  36 

Are  included  in  the  term  "  personal 
estate"  in  contracts  and  wills,  and 
as  assets  in  the  hands  of  execut 
ors.  40 
Bill  of  sale  of,  [See  Gift,  Mort 
gage  ,  Sale.] 

Chattels,  are  considered  as.  2 

Children  of,  follow  the  condition  of 
mother.  3.  24 

Claim  for,  and  hire  of,  [See  Hir 
ing.] 

•'       of  Indians  as,  [See  Freedom.] 
Crimes  committed  by,  [See  Crimes.] 
Deed  of  Gift,  for,  [See  Gift.] 
Delivery  of,  [See  Sale.] 
Detinue  for,  [See  Detinue.] 
Devise  of,   [See  Devise.] 
*'         to  [See  Emancipation} 
Devised,     profits     of,     [See    Re- 
mainder.] 

Division  of,  [See  Division.] 
Donation  of,  [See   Infant,   Louisi 
ana.] 

Do  not  escheat  to  the  state,  as  in 
case  of  real  estate  for  defect  of 
heirs,  but  vest  in  administrators  or 
executors  as  assets  for  the  benefit 
of  creditors.  41 

Emancipation  of,  [See  Emancipa 
tion.] 

Estate — are  considered  real  and  per 
sonal.  2.  37 
Female,    [See  Increase.] 
Freedom  to,  [See  Freedom.] 
Fugitive,  [See  Fugitive. 
Debts  contracted  by,      [ib.] 
Imprisonment   for   fornication    and  j 
bastardy,               [ib.] 
General — Devise    of,    [See   Hus 
band.] 

Gifts  of,  [See  Gifts.] 
Harboring  of,  [See  Harboring.] 
Hiring  of,  [See  Hiring.] 
"    out  their  own  time,          [ib.] 
Human-beings,  are  considered  as.  1  ! 
Importations  of,  [See    Emancipa-  \ 
tion.] 
Incapacities  of,  [See  Incapacity.] 


Increase  of,  [See  Increase.] 
Introduced  from  mother-county.    9 
In  whose  possession,  where  used  in 
common,  [See  Possession.] 
Issue  of,  [See  Issue.] 
Kidnapping  of,     [See  Stealing.] 
Liberty,     "bequest      of— to,     [See 
Emancipation.] 

Loans  of,    [See  Frauds,  Posscss- 
ion.] 

Loss  of,  [See  Hiring.} 
Maltreating  of,  [See  Liabilities  to 
Master.} 

Mariner,  wages  of,  [ib.] 

Marriage  of,  [See  Incapacity.] 
Misrepresentation    of — health     of, 
[See  Warranty.] 
Mortgage  of,  [See  Mortgage.] 
Murder  of,  [See    Liabilities  to  and 
of  Master  and  others.] 
Of  a  female,  [See  Husband.] 
Owners  of,  [See  owner.] 
Personal-estate — are    considered 
as.  2.  37 

Pledged,  [See  Mortgage.] 
Possession — peaceable      of,     [See 
Possession.] 

Real-Kstate — are    considered, 
as.  2.  36. 

*'  "     Pass  by  statute  of  wills 

as,  but  are  chattels  for  payment  of 
debts.  37 

Reclaiming    of,    [See    Emancipa 
tion.] 

Recovery — risk     of,     [See    War 
ranty.] 

Reduction — in  price  of,          [ib.] 
Removal  of,  [See  Emancipation.] 
Responsibility  for   value    of,    [Sec 
Liabilities  to  Master.] 
Runaway,  [See  Fugitive.] 
Sale  of,  [See  Sale.] 
Sojourn  abroad   of,  [See  Emanci 
pation.] 

Special  demand  of,  [See  Hiring.] 
Stealing  of,  [See  Stealing.] 
Suspicion  of  being  runaways,  [See 
Fugitive.] 

Thefts  of,  [See  Liabilities  of  mas 
ter.] 

Torts,  committed  by,     [ib.] 
Trading  of,  [See  Trading.[ 
Trespass    by,    [See  Liabilities  of 
and  to  master.] 


INDEX. 


473 


Unreclaimed,  (See  Fugitive.] 
Unsound,  Sale  of,  [See  Warranty.] 
Vendee  of,    )    [See    Vendee 
Vendor  of,    )    and  Vendor.] 
Verbal,  gifts  of,   when   void,  [See 
Warranty.] 

Volition,  are  capable  of,  2 

Who,  are, 

Negroes,  3 

Indians,  3.  12.  18.  19.20 

M  rs, 
Mulattoes, 
When  a  bill  will  lie  by,  [See  Free 
dom.} 
SOJOURN, 

in  Pennsylvania,  [See  Emancipa 
tion.] 

of  a  slave  in  France,  [ib. 

SOLE,  Feme,  marriage  of, 

[See  Remainder.] 
SOUNDNESS,  [See  Warranty.] 
SPANISH,  woman,  descendant  of, 

[See  Emancipation.] 
STATE, 

Assent  of,  to  wills  or  deeds  of  manu 
mission,  [See  Emancipation.] 
Power  of,   to   change  condition   o 
persons,      [ib.] 
Removal  out  of,          )      ,-•»  , 

"         to  another,    ) 
Slaves   do    not    escheat   to,    [See 
Slaves.] 

STATUTE,  of  Frauds,  [See  Frauds.] 
of  Limitations,  [See   Limitations, 
Possession.] 
-of  Wills,  [See  Wills.] 
Relative  to  tribunal  for  trial  of  ne 
groes,  [See  Crimes*] 
Respecting  the  harboring  of  slaves^ 
[See  Harboring.] 

STATU,  liber,  [See  Emancipation,  Free 
dom,  Incapacity.] 

STEALING  AND  KIDNAPPING,  Slaves,  434 
A  slave  may  be  guilty  of,  tho*  no 
force  is  used,  434 

And  although  the  owner  consented 
to  the  plan  arranged  with  a  view  of 
detecting  the  offender,  435 

Taking  a  slave  a  few  yards  with  an 
intent  to  steal,  completes  the  felo 
ny,  436 
The  acts  against,  apply  to  negroes 
as  well  as  whites,  436 
Indictment  must  state  the  negro 


stolen  to  be  a  slave  ;  and  if  it  does 
not,  and  defendant  is  acquitted,  it  is 
no  bar  to  a  subsequent  prosecu 
tion,  436 
Must  state  slave  was  taken  and  re 
moved  without  the  consent  of 
owner,  437 
[See  Warranty.] 

STOLEN,  negro,  [See  Vendee.] 

SUBSCRIBING,  witness,  [See  Gifts.] 

SUE,  Right  to,  [See  Warranty.] 

SUITS,  for  freedom,  [See  Freedom,] 

"  Rule    of  evidence  in,  [ib.] 
Incapacity  of  slaves  to  be   parties 
to,  [See  Incapacity.] 
On  Warranty,  [See   Warranty.] 

SUPPORT,  slaves   unable  to  gain,    [See 
Emancipation.] 

SURRENDER,  Refusal  of  slaves  to,  [See 
Liabilities  of  master. 

SURETY,  [See   Warranty.] 

SUSPICION, 

of  slave's  being  a  runaway,  [See 
Fugitive.] 

TEMPORARY  servitude, 
[See  Emancipation] 

TENANT    for  life,  declarations  of,  [Sec 
Hiring.] 

[See  Remainder.] 

TENDER,  [See  Detinue.] 

TENNESSEE, 

Will    or    Deed    of    emancipation 
in,  [See   Emancipation.] 
[See  Frauds,  Gifts,  Harboring,  In 
fant,  Property.] 

TERRITORY, North  Western,  [See  Eman 
cipation.] 

TESTATOR, 

Children  of,  [See  Remainder.] 
Debts  of,  [See  Devise,  Emancipa 
tion.] 

Intention  of,  [See  Wills.] 
[See  Emancipation.] 

TESTIMONY-Parol, 

Exclusion  of,  [See  Sale.] 

[See  Crimes,  Increase.] 
THEFTS,  of  slaves,   [See  Liabilities  of 

Master.] 
THIEF,   allegation    that    a   slave   was, 

[See    Warranty.] 
TITLE,  covenant  of,  [See  Remainder.] 

To  freedom,  [See  Emancipation.] 

To  slaves,  a  deed  registered  is  not 


474 


INDEX. 


necessary  to  pass  title  to,  when  pos 
session  follows  and  accompanies 
the  gift  or  sale.  41 

Warranty  of,  [See  Warranty.] 
"[See  Sale,  Warranty.} 

TOLERATION  of  slavery, 
[See  Emancipation.} 

TORTS, 

committed  by  the  slave,  [See  Lia 
bilities  of  Master,  Crimes.} 

TOWN, 

Overseers  of,  [See  Emancipation.} 

TRADER,  [See  Trading.} 

TRADING, 

with  slaves,  penalties  for.  438 

Not  knowing  the  negro  to  be  a  slave, 
no  defence.  438 

Trader  liable  for  all  the  acts  direct 
ly  flowing  from  such  trading.  440 
No  defence  to  trader,  that  corn  was 
given  by  the  overseer  to  the  slave, 
for  the  purpose  of  detection,  who 
traded  it  in  his  presence.  441 

TRANSFER, 

In   North    Carolina   under   act    of 

1784,  [See  Gifts.} 

Rule  as  to  in  North  Carolina.      67 

TREATY  of  cession,   [See  Emancipa 
tion.} 

TRESPASS,  by  slaves, 

See  Liabilities  of  Master.] 
Action  of,  when  for  labor  and  ser 
vices,   [See  Damages.] 
And  false  imprisonment,  [See  Free 
dom.] 

TRIAL, 

and    punishment    of   slaves,    [See 

Crimes.] 

By  jury,  [See  Crimes.} 

By  free  persons   of  color    entitled 

to,  [See  Crimes.] 

TRIBUNAL,  for  the  trial  of  negroes,  [See 
Crimes.} 

TROVER,  [See  Mortgage.} 

TRUSTEES,  [See  Warranty.} 

ULTERIOR  legatee,  [See  Increase.] 

UNLAWFUL  assembly, 

slaves  at,  [See  Liabilities  to  Mas 
ter.} 

UNMARRIED  woman, 

verbal  gifts  to,  [See  Gifts.} 

UNRECLAIMKD  slave,  [See  Fugitive  } 

UNRECORDED  sale,  [See  Possession.] 

UNSOUND  slave,Sale  of,  [See  Warranty] 

UN8OUNDNE63, 


USE  in  common  of  slaves, 
[See  Possession.] 

VALIDITY, 

of  a  recorded  will,  [See  Freedom.] 

VALUE,  of  slave,  [See  Remainder.] 

Responsibility  for,  [See  Harboring.} 

VARIANCE,  In  Indictment, 

[See  Liabilties  to  master} 

VENDEE, 

Manumission  by,  [See  Emancipa 
tion.} 

Sale  of  Personal  Property,  without 
performing  stipulation  with  vendor, 
[See  Property.] 

The  bonajide^  of  a  stolen  negro,  is 
not  entitled  to  demand  the  price 
from  lawful  owner,  69 

[See  Fugitive ,  Mortgage,  Posses 
sion,  Property,  Remainder,  War 
ranty.} 

VENDOR, 

Attachment  for  debts  of,  [See  Salt.} 
Ignorance  of  defect  iu  slave,  [See 
Warranty.] 

Personal       property      remaining 
in,  [See  Property ,  Personal.} 
Presumptive  evidence  of  ownership 
in,  [See  Possession.} 
[See    Kentucky,    Possession,  J?e- 
mainder.} 

VERBAL, 

Gifts,  of  slaves  when  void,  [See 
Gifts.} 

VERDICT,  of  acquittal,  [See  Liabilities 
of  master  and  others. 

VICE,  Absolute,  [See  Warranty.} 
Redhibitory,  [ib.] 

VIOLATION, 

of  creditors    rights,  [See  Emanci 
pation.] 
of  statute,  [ib.] 

VIOLENCE,  of  a  disease, 

disguising  &c.  [See  Warranty.] 

VIRGINIA, 

Devise  to  a  slave  in,  [See  Devise.} 
Importing  into,  [See  Emancipa 
tion.} 

Slaves  taken  from,          [ib.] 
Slaves  when    entitled   to    freedom 
in,  [See  Freedom.} 
Parol  gifts  of  slaves  in,  [See  Gifts.] 
5    years    possession    of    a     slave 
in,  [See  Possession.} 
[See  Fugitive  Indians,.] 


INDEX. 


475 


VOID,  Sale,  [See  Warranty. 

VOLUNTARY,  Gifts  and  Grants, 
See  Note  to  page  60. 
Importations,      of      slaves,      [See 
Emancipation. 

WAGES,   apportionment  of,  [See  Hi 
ring.] 

Of  mariner  slave,  [See  Liabilities 
to  Master.] 

When  recoverable  by  slave,  [See 
Damages.] 

WARRANTY, 

Is  an  executory  contract.  128 

No  particular  form  of  words  neces 
sary  to.  128 
Of  soundness  means,  that  the  thing 
warranted  is  sound  at  the  time  of 
sale,  not  that  it  should  continue  so 
thereafter.  127 
And  is  also  implied,  in  South  Caro 
lina,  for  a  slave  sold  for  full 
price.  127 
Not  implied  from  price,  where  pur 
chaser  is  acquainted  with  the  de 
fects.  120 
Not  broken  where  purchaser  has  a 
knowledge  of  all  the  facts.  121 
A  disease  curable  in  its  origin,  but 
incurable  at  time  of  sale,  is  a  red- 
hibitory  case.  115 
Any  disease  with  which  a  slave  is 
afflicted  at  the  time  of  sale  is  in 
curable,  may  be  pleaded  as  aredhi- 
bitory  vice.  107 
Redhibitory  defects  in  a  slave,  may 
be  pleaded  after  12  months,  in  de 
fence  of  an  action  for  the  price.  109 
In  an  action  to  rescind  the  sale  of  a 
slave  commenced  within  6  months, 
the  plaintiff  must  prove  at  what 
time  he  obtained  a  knowledge  of  the 
redhibitory  vices.  110 
Prescription  in  redhibitory  actions 
runs  from  the  time  defects  become 
known  to  the  purchaser.  112 
Vendors  ignorance  of  a  defect  in 
slave,  no  protection  in  the  action 
quanti  minoris.  113 
To  defeat  an  action  of  Redhibition, 
it  must  be  shown  that  the  purchaser 
knew  the  disease  was  incurable,  or 
otherwise,  that  he  bought  tho  risk 
of  the  slaves  recovery.  117 
The  same  principle  adopted  in 
Kentucky.  118' 
Purchaser  of  a  slsvs  absolved  from  , 


contract,  if  on  the  sale  her  state  of 
health  is  misrepresented  or  conceal 
ed  ;  [and  see  Note,  p.  120.J  119 
Redhibitory  action  sustained,  and 
recission  of  the  sale  ordered,  when 
the  malady  of  which  the  slave  died 
is  incurable,  and  baffles  the  regular 
aid.  121 

Parol  evidence  admissible  to  prove 
declarations  of  vendor  as  to  redhi 
bitory  vices  at  or  before  sale,  but 
not  declarations  of  strangers.  122 
Disguising  or  misrepresenting  the 
violence  of  a  disease,  renders  sale 
void.  122 

As  also  omitting  to  disclose  facts 
not  discernible.  123 

In  an  action  for  selling  an  unsound 
slave  with — it  is  no  defence  that  the 
slave  had  been  sold  to  a  third  per 
son,  and  no  recovery  had  been 
had.  124 

The  causes  for  a  reduction  in  the 
price  of  a  slave,  must  be  the  same 
as  those  for  which  a  recission  of  sale 
may  be  demanded.  125 

When  a  jury  find  that  a  slave  had 
the  consumption  at  and  before  the 
time  of  sale  and  transfer,  the  court 
below,  will,  from  the  nature  of  the 
disease,  presume  it  incurable.  126 
Redhibitory  defects  should  be  solv 
ed  by  the  circumstances  of  each 
case  ;  and  unless  the  thing  is  abso 
lutely  useless,  it  is  the  duty  of  the 
courts  to  make  a  deduction  in  price, 
than  avoid  the  sale.  128 

The  defect  must  be  material.  130 
Where  there  is  no  express  warran 
ty,  it  must  averred  the  defendant 
knew  of  the  unsoundness.  131 

Extent  as  to  increase.  132 

As  to  slaves  generally,  and  applica- 
to  other  chattels.  132 

Suit  on.  132 

Of  moral  qualities.  132 

Drunkenness  is  a  mental,  not  a  phy 
sical  defect,  and  is  not  a  ground  for 
redhibition.  133 

But  a  fraudulent  concealment  of  it, 
will  be  a  ground  for  rescinding  the 
contract.  134 

Thief — An  allegation  that  a  slave 
was,  will  authorize  evidence  of  the 
habit  of  stealing.  135 

In  South  Carolina,  not  implied.  136 


476 


INDEX. 


Habit  of  running  away,  what 
amounts  toi,  136 

A  slave  described  in  a  bill  of  sale 
as  a  ban  domestiquc,  cockier,  el 
briquitier,  sufficient  if  he  be  proven 
to  be  a  good  domestic,  coachman, 
and  brickmaker.  136 

Craziness  or  idiocy  is  an  absolute 
vice,  and  where  not  apparent  will 
annul  the  sale.  139 

Malady,  redhibitory — evidence  of 
its  previous  existence  must  be  giv 
en,  when  it  does  not  manifest  itself 
within  three  days  after  the  sale.  140 
A  vendee  cannot  demand  a  recis- 
sion  of  the  sale,  for  a  capital  crime 
committed  by  the  slave  immediate 
ly  thereafter.  141 
A  recision  of  the  sale  of  all  the 
slaves,  where  several  are  bought 
together,  and  for  a  single  price, 
cannot  be  demanded  by  the  vendees 
on  account  of  a  redhibitory  defect 
in  one  «r  more  of  them.  144 
Stealing,  though  unaccompanied 
with  force,  is  a  redhibitory  de 
fect.  145 
Not  the  essence  of  the  contract.  147 
In  a  redhibitory  action,  plaintiff 
may  prove  hat  slave  ran  away  after 
purchase.  147 
Of  title, 

Liability  of  surety  on.  148 

Of  Sale  by  a  broker.  149 

Sale  of  a  slave  by  a  person  having 
no  title,  and  without  warranty,  a 
recovery  by  a  third  person  is  not 
necessary  to  give  the  vendee  a  right 
of  action,  as  his  right  to  sue  origi 
nates  from  deceit  of  seller.  149 
Implied — of  title,  exists  in  every 
sale  of  personal  property,  excep 
tions  to  the  rule,  are  trustees  and 
executors,  or  perhaps  sheriffs  and 
agents.  ]50 

Implied — of  title,  violated  by  sel 
ling  a  slave  absolutely,  who  is  at  a 
future  time  entitled  to  freedom.  151 
If  the  purchaser  buys  pcnchnte  lite, 
he  takes  the  title  dependant  on  the 
event  of  the  suit.  151 

WHITE  Persons, 

Issue  of  a  white  woman  with  a 
slave,  are  slaves  under  Maryland 
act — afterwards  repealed  21 


A  conviction  of  the  marriage  of  a 
white  woman  with  a  slave  must  be 
produced  under  the  act  of  1663  to 
enslave  her  descendants.  21 

On  inspection,  are  presumed  free, 
unless  a  descent  from  a  slave  in  the 
maternal  line  be  proved.  22 

Rights   of,  where    concerned,  [See 
Incapacity.] 
WniTE-Woman, 

Attempt  by  negro  to  ravish,  [See 
Crimes.] 

Conviction  of  the  marriage  of,  [See 
White  Persons.] 
WIDOW,  [See  Dower.] 
WIFE, 

The  husbands'  right  to  the  dower 
slaves  of,  if  reduced  by  him  to  pos 
session,  pass  on  his  death  to  his 
representatives.  38. 

[See  Dower,  Remainder.] 
WILL, 

After  purchased  slaves  do  not  pass 
by,  unless  it  appears  to  be  the  in 
tent  of  the  testator.  58 
By  statute  of,  slaves  pass  as  real 
estate,  and  an  executor  has  no  title 
in  or  power  over  a  slave,  specific- 
ly  devised,  unless  expressly  reserv 
ed  to  him.  37. 
The  word  "  increase"  in,  [See 
Increase.] 

Emancipation   by,  [See    Emanci 
pation.] 

Nuncupative,  [ib.] 

Recorded — validity  of,  [See  Free 
dom.] 
Renunciation  of,  [See  Devise.] 

[See  Real  Estate.] 
WITNESS, 

Incapacity  of  slaves  to  be,  [See  In 
capacity.] 

Incompetent,  [ib.] 

Subscribing,  [See  Gift.] 
WOMAN, 

Unmarried, — gifts  verbal  of  slave, 
when  void  to,  [See  Gifts.] 
Spanish, — descendant      of,       [See 
Emancipation.] 

White,  conviction  of  the  marriage 
of,  [See  White  Persons.] 
WRIT,  [See  Homine  Replegiando,] 
YEAR,  Slaves  sold  for  a  time 
of,  [See  Emancipation.] 
Hiring  of  Slaves  for,  [See  Hiring.] 


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